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II 


THE  ORIGIN  AND  DEVELOPMENT  OF  THE  BILL  OF  RIGHTS 
IN  THE  CONSTITUTION  OF  ILLINOIS 

BY  '  ' 


HERMAN  GERLACH  JAMES 

A.  B.  University  of  Illinois,  1906 
J.  D.  University  of  Chicago,  1909 


THESIS 


Submitted  in  Partial  Fulfillment  of  the  Requirements  for  the 


Degree  of 


MASTER  OF  ARTS 


IN  POLITICAL  SCIENCE 


IN 


THE  GRADUATE  SCHOOL 


OF  THE 


UNIVERSITY  OF  ILLINOIS 


19102 


UNIVERSITY  OF  ILLINOIS 

THE  GRADUATE  SCHOOL 


1  HEREBY  RECOMMEND  THAT  THE  THESIS  PREPARED  UNDER  MY  SUPERVISION  BY 


ENTITLED 


BE   ACCEPTED    AS   FULFILLING    THIS    PART    OF    THE    REQUIREMENTS   FOR  THE 


DEGREE  OF 


//  '  In  Charge  of  Major  Work 


Head  of  Department 


Recommendation  concurred  in: 


Committee 
on 

Final  Examination 


167540 


UiUC 


The  conutitut iona"'-  practice  of  embodying  in  the  fundamental 
law  of  a  state  a  declaration  of  the  rights  and  liberties  of  the 
individuals  in  that  state,   a  practice  so  familiar  to  us  living 
under  the  constitutions  of  the  United  States  as  to  be  re£p.rded 
almost  as  a  matter  of  course,  is  distinctively  American  in 
origin,  and  had  its  genesis  less  than  a  century  and  a  half  ago. 
The  famous  Virginia  Bill  of  Rights  drawn  up  by  George  Mason  and 
adopted  on  June  13,  1776  by  a  convention  of  members  of  the  old 
Virginia  House  of  Bicrgesses  was  the  first  embodiment  of  the 
principle  that  certain  rights  of  the  individual  are  so  sacred 
that  their  inviolability  should  be  secured  in  the^highest 
expression  of  the  sovereign  will  of  the  people. 

The  exajaple  of  Virginia  in  thus  formally  declaring  certain 

rights  and  liberties  of  the  people  to  pertain  to  them  and  their 

posterity  as  the  basis  and  foundation  of  government  was  followed 

in  every  one  of  the  eleven  states  which  adopted  constitutions 

follov/ing  the  resolution  of  the  Continental  Congress  in  May 

(2) 

1776  advising  such  action  on  the  part  of  the  colonies. 

Never  had  the  belief  in  the  existence  of  inviolable  personal 
rights  been  so  general  as  in  the  century  preceding  the  American 
Revolution,  and  nowhere  had  this  doctrine  received  wider  recog- 
nition than  among  the  American  colonists.    The  principle  of 

(1)  Scherger  "The  Evoltition  of  Modern  Liberty."  Cap  ♦VIII . 

(2)  Thorpe  "Araerican  Charters,  Constitutions  and  Organic 
Laws . " 


-3-  ^ 

individual  liberty,  religious,  political  and  personal,  wao  30 
fundamental  in  the  political  thought  of  that  time  and  place  that 
the  idea  of  guaranteeing  this  freedom  by  declaring  it  in  the 
basic  lav7  of  the  government  met  with  immediate  and  universal 
approval  and  acceptance,  not  only  in  the  subsequent  state  con- 
stitutions, and  the  federal  constitution  in  this  country,  but  in 

(1) 

the  constitutions  of  other  countries  ao  well. 

To  say  that  the  idea  of  constituting  these  fundamental  rights 

a  part  of  the  basis  of  government  originated  in  the  American 

colonies  in  1776,  is  not  to  say  that  the  belief  in  the  existence 

of  such  rights  originated  then  and  there.    The  consciousness  of 

the  existence  of  such  rights,  and  even  the  formal  declaration  of 

their  nature  and  extent  began  centuries  before,  and  extended 

through  a  period  during  which  the  constitutional  principles  and 

political  philosophy  from  which  these  rights  and  liberties  were 

evolved  and  developed,  underwent  many  radical  changes. 

The  doctrine  of  individual  rights  free  from  interferences 

or  even  destruction  by  the  state  was  unknown  to  the  political 

philosophy  of  the  Greeks  and  Romans,  to  v;hom  the  state  was 

absolutely  sovereign.    Nor  does  this  principle    find  recognition 

among  the  Romans  or  even  in  the  middle  ages,  which  knew  individual 

rights  only  in  the  shape  of  contractual  relations  arising  out  of 

(2) 

an  interest  in  the  soil.        But  in  England  certain  customs  and 

(1)  ^The  French  Declaration  of  the  Rights  of  Man  1T93. 

(2)  Stubbs  "Select  Charters  Illustrative  of  English  Consti tutiong L 
History."    p.  396. 


-3- 

rules  of  the  common  law  had  from  earliest  timea  afforded  some 

measure  of  protection  for  individuals  aa  regarded  their  personal 

liberty  and  security,  and  the  violation  and  destruction  of  such 

liberty  and  security  at  the  handa  of  the  king  arouoed  that  protea" 

and  resistance  which  finally  culminated  in  the  first  formal 

recognition  of  the  rights  of  English  subjects,  the  Great  Charter 

of  King  John  in  1315. 

In  this^the  earliest  charter  of  liberties,  is  found  the 

model  for  many  of  the  provisions  of  the  Virginia  Bill  of  Rights, 

the  prototype  of  all  the  others.    The  prohibition  on  excessive 

fines  and  on  cruel  and  unusual  punishments  is  directly  traceable 

to  Cap*  30  of  the  Great  Charter;  unreasonable  seizure  is 

forbidden  in  effect  in  cap*  38;  i:7hile  the  protection  of  trial 

according  to  the  la'v  of  the  land    was  virtually  embodied  in 

cap.  59.        Other  provisions  of  the  Great  Charter  were  adopted 

by  some  Bills  of  Rights  framed  immediately  after  that  of  Virginiaj 

and  copied  from  them  into  their  later  constitutions,  among  which 

provisions  may  be  mentioned  the  as  :urance  of  right  and  justice 

(3) 

without  sale  denial, or  deferment,        and  the  right  of  free 

'  (3) 
egress  from  and  ingress  to  the  country. 

These  several  guarantees  embodied  in  the  Great  Charter  were 


(1)     Stubbs  "Select  Charters  Illustrative  of  English  Constitutions 
History."    p. 396 

(3)    Magna  Chart  a.  cap.  40. 

(3)     Ibid  Cap.  43. 


-4- 

repeatedly    affirmed  by  later  kings,  only  to  be  aa  repeatedly 
violated,  until  again  solemnly  declared  by  the  people,  thia  time 
through  their  repreoentati ves  in  Parliament,   in  the  oecond  fereat 
charter  of  liberties,  the  Petition  of  Right  to  Charles  I  in  1638. 
In  this  document  the  principal  ground  of  complaint  was  the 
violation  of  the  due  process  of  law  provisions  in  the  Great 
Charter  and  the  statute  30  Edw.  Ill,  through  the  application  of 
martial  law  in  times  of  peace,  and  the  unjust  quartering  of 

soldiers  and  sailors  upon  the  subjects. 

(3) 

In  1679  the  Habeas  Corx^us  Act         re-affirmed  another 

common  law  right  which  a  century  later  ;vas  regarded  as  of 

fundamental  importance  by  the  framers  of  many  of  our  American 

Bills  of  Rights,  though  not  found  in  the  Virginia  constitution 

of  1776.    Then,  finally,  in  1689  the  English  Bill  of  Rights, 

declared  upon  the  accession  of  William  and  Mary,  in  denunciation 

of  the  abuses  of  the  late  King  James  II  as  a  warning  and  guide 

to  the  new  rulers,   still  further  increased  the  number  of 

individual  rights  thus  established  in  England  by  formal  declaration 

Among  the  additional  securities  provided  were  the  fundamental 

rights  of  petition,  of  bearing  arms,  of  free  elections  and  of 

(3) 

freedom  of  speech  and  debates  in  the  legislature. 


(1)     Stubbs  "Select  Charters."  p.  515. 
(3)     Ibid.  p.  517. 
(3)     Ibid.  p.  533. 


-5- 

In  addition  to  the  rights  thus  formally  eata'olished  by  ',he 
series  of  English  constitutional  documents,   there  were  certain 
other  doctrines  of  the  comraon  law  which  every  English  subject 
regarded  a^  his  birthright,  and  v/hich  seemed  of  sufficient  impor- 
tance to  the  colonists  to  deserve  embodiment  in  their  enumeration 
of  inviolable  rights.    Some  of  these  rights  had  indded  always 
been  kept  sacred  in  England  by  the  crovvn,  but  others  had  been 
repeatedly  ignored,   and  all  were  the  heritage  of  the  colonists, 
ajid  were  deemed  worthy  of  the  new  protection  which  the  written 
constitutions  were  meant  to  guarantee. 

Such  then^were  some  of  the  sources  from  which  the  American 
statesmen  in  1776  derived  their  ideas  of  fundamental  rights, 
ideas  in  no  sense,  therefore,  newly  discovered  or  declared  at 
that  time.    On  the  contrary  they  were  in  the  language  of  the 
English  Bill  of  Rights  itself,   "ancient  rights", to  which  every 
English  subject  had  been  entitled  by  the  course  of  the  common 
law  and  the  statutes. 

But  the  American  Bills  of  Rights  contained  still  other 
declarations  which  had  not  previously  been  embodied  in  any 
charter^or  petitions,  and  which  were  not  recognized  by  the 
common  la^,   the  origin  of  which  is  traceable  to  a  different 
source,  namely,  the  then  recent  emphasis  and  general  acceptance 
of  the  theory  of  natural  law  as  developed  in  the  worke  of  Milton, 
JIarrington  and  Locke  in  England,   and  in  those  of  eminent  writers 
of  continental  Europe,  during  thn  seventeenth  century. 

The  theory  of  natural  law,  originated  almost  five  centuries 
before  Christ  by  Heraclitus  and  developed  in  Greece  by  the 
Stoics  and  their  successor 3 , «ould  come  to  no  fruition  in  the 


birth  of  private  ri^^ta  in  that  period  wh^n  the  sovereignty  of 

(1) 

the  state  waa  absolute.      But  the  effect  of  this  theory  upon 

the  developoent  of  the  doctrine  of  natural  rights,  two  thousand 
years  later,  ^hen  political  concepts  ho.!  raiically  altered, 
ira3  niost  potent . 

In  the  philosophical  theory  of  natural  law  as  expounded  in 
the  seventeenth  century  was  esibodied  the  concept  of  inherent, 
natural,  inalienable  rights  appertaining  to  men  as  men,  and 
which  no  governn-ent  could  rightly  abridge  or  destroy. 

Mere  than  a  century  before  the  Anierican  Revolution,  Milton 
had  defined  the  purpose  of  goverrjnient  to  be  the  preservation  of 
the  liberty,  peace  and  safety  of  the  people,  and  had  declared 
that  all  men  are  naturally  born  free,  and  that  liberty  of  press 
and  of  conscience  should  be  respected.    Developing  this  theory 
still  further  Locke  contended  that  men  lost  none  of  their 
natural  rights  by  entering  into  the  state  of  society,  but 
surrendered  so  inuch  only  of  their  liberty  a3  was  absolutely 
necessary  to  establish  government. 

These  views,  chainpioned  by  many  noted  publicists  of  the 
seventeenth  and  eighteenth  centuries,  vrere  -^vell  known  to  the^ 
leaders  among  the  Ar.erican  colonists,  in  whose  temperaments  th^-;^ 
a  ready  response,  and  -jyhose  difficulties  they  seemed  so 
satisfactorily  to  solve. 

(1)     Scherger  "The  Evolution  of  Hodern  Liberty."  cap.  !• 
(3)     Ibid  ch.  II. 


-7- 

The  Ha33achU3att8  Body  of  Liberties  had  as  early  aa  1641^^ 

contained  a  statement  and  guarantee  of  many  of  these  rights, 

and  a  century  or  more  later  James  Otis,  John  A'iana  and  Samuel 

Adams,  filled  with  enthusiasm  for  the  doctrine  of  natural  law 

/tights,"  had  made  this    captivating  theory  the  common  knowledge 
^  (2) 
of  the  American  colonists. 

Inflamed  with  the  memory  of  recent  tyrannies  and  oppressions 

dedicated  to  the  terrible  struggle  they  had  just  commenced  in 

behalf  of  their  liberties,  and  conscious  that  even  a  democracy 

furnishes  no  necessary  guarantee  of  liberty,  the  colonists 

almost  inevitably  accorded  to  the  declaration  of  the  nature  and 

purpose  of  government,  and  of  the  rights  of  liberty  of  conscience 

speech  and  press  so  important  a  place  in  the  structure  of  their 

constitutions . 

Fnen,  therefore,  in  1818  the  framers  of  the  first  Illinois 
constitution  were  confronted  with  the  problem  of  drawinr;  up  a 
statement  of  the  fundamental  law  for  the  nev;  commonwealth,  there 
Was  nothing  novel,  either  in  the  doctrine  of  inviolable  personal 
rights  and  liberties,  or  in  the  practice  of  guafanteeing  them 
in  the  constitution  by  express  enumeration.  ITot  only  had  all 
of  the  eighteen  state  constitutions  in  force  when  Illinois 
became  a  state^^  contained  such  a  declaration  of  individual 
rights,  as  had  also  the  Declaration  of  Independence,  and  the 
federal  constitution,  but  in  France  as  well  had  this  principle 
received  effective  recognition  in  the  Rights  of  Man  prefixed 


(1)  Stimson  "Federal  and  State  Constitutions  of  the  U.S." 
Rook  II .  ch .  I . 

(2)  Scherger  supra  ch .  IX. 


— 8— . 

(1) 

to  the  conatitution  of  1793. 

Of  the  most  immediate  and  determining  influence,  no  doubt, 

in  shaping  the  Illinois  Bill  of  Rights  was  the  famous  Northwest 

Ordinance  of  1787  under  which,  with  but  slight  chancres,  the 

framers  of  the  Illinois  constitution  were  then  living,  and  which 

for  thirty  years  past  had  been  the  organic  law  of  the  territory^ 

now  about  to  be  formed  into  a  state.    This  Ordinance  contained 

six  articles  of  com.pact  of  which  the  first  two  constituted 

virtually  a  Bill  of  Rights,  which    though  shorter  and  more 

concise  were  practically  as  comprehensive  as  mar.y  of  the  more 

(2) 

verbose  declarations  in  the  existing  state  constitutions. 

The  authorship  of  this  celebrated  Ordinance  seems  to  be  a  matter 

of  dispute,  but  whether  it  was  chiefly  the  work  of  Putnam,  Cutletr 

Dane, or  Jefferson,  or,  what  is  more  probable,  a  combination 

of  the  ideas  of  them  all,  it  unquestionably  offered  a  more 

natural  and  familiar  model  for  the  framers  of  the  first  Illinois 

even  the 

constitution,  than/Virginia  Bill  of  Rights  and  its  copies  in 
the  other  states    which  exerted  a  considerable  influence  as 
well. 


(1)  Liefer  "Civil  Liberty  and  Self  Government."  p.  536. 

(2)  Thorpe  "American  Charters  Constituions  and  Organic 
Laws."  Vol .  3,  p .  957. 


-9- 

(1) 

Section  I 

The  firat  section  of  the  Bill  of  Rights  of  the  conotiution 

of  Illinois  begins  by  declaring  men  to  be  by  nature  free  ani 

independent  and  to  p03se33  these  inherent  and  inalienable  rights 

v;hich  occupied  so  important  a  place  in  the  political  philosophy 

of  the  seventeenth  century.  The  constitution  of  1818  had  declared 

that  "all  men  are  born  free  and  independent  and  have  certain 

inherent  and  indefeasible  rights,  among  which  are  those  of 

enjoying  and  defending  life  and  liberty  and  of  acquiring  and 

possessing  and  protecting  property  and  reputation  and  of  pursuing 

their  own  happiness,"  using  language  very  similar  to  that  of 

(3) 

the  Virginia  Bill  of  Rights  of  1776      and  of  the  Declaration 

(3) 

of  Independence  in  the  sane  year. 
* 

The  assertion  that  all  men  are  born  equally  free  and  inde- 
pendent Was  given  further  effect  in  this  state  by  the  prohibition 
(4) 

on  slavery       whereas  in  Vir^^inia  this  declaration  was  believed 

(5) 

not  to  apply  to  the  negroes.        Though  property  and  reputation 
were  first  included  among  the  fundamental  individual  rights  along 


(1)  All  men  are  by  nature  free  and  independent  and  have  certain 
inherent  and  inalienable  rights— among  these  are  life, liberty 
and  the  pursuit  of  happiness.  To  secure  these  rights  and 
the  protection  of  property,  governments  are  instituted  ajaong 
men,  deriving  their  just  powers  from  the  consent  of  the 
governed'^  Constitution  of  Illinois,  1870  Art. II  Sec.  I. 

(2)  Constitution  of  Virginia,  1776, Bill  of  Rights,   sec, I 
Thorpe,   "American  Charters,  Constitutions  and  Organic  Laws," 
p  .3813. 

(3)  Declaration  of  Independence .par .2 .Thorpe  sup r a .  p. 4. 

(4)  Constitution  of  Illinois  1818,  Art .Vi,   Sec. I  Thorpe  p980 

(5)  Stimson  "Federal  and  State  Constitutions  of  the  United 
States,  p  .  21 . 


-10- 


with  life,  liberty  and  the  purauit  of  happineiiJ  by  the  Haooachueet  b 

(1) 

Body  of  Liberties  (Preamble)      in  1641,  this  broader  enumeration 

Was  to  be  found  in  only  one  otate  conatitution  in  1813,  namely 

(3) 

that  of  Pennsylvania    1790,       from  v;hich  the  whole  of  this  section 
in  the  Illinois  constitution  of  1818  was  taken. 

The  essentially  American  doctrine  of  the  sovereignty  of  the 
people,  and  the  principle  of  the  basis  and  purpose  of  government 
were  declared  in  the  words  "all  power  is  inherent  in  the  people 
and  all  free  governments  are  founded  on  their  authority  and 
instituted  for  their  peace,   safety  and  happiness,"  which  had 
been  stated  in  precisely  the  same  terms  in  the  constitutions  of 
Indiana,  1816  and  Pennsylvania,  1790,   and  in  very  similar 
language  in  a  number  of  the  other  state  constitutions. 

In  the  constitution  of  1848  all  these  provisions  were  adopted 
from  the  first  constitution  without  the  slightest  change,  though 
the  original  committee  report  included  in  addition  an  express 
declaration  of  the  right  of  the  people  to  alter  the  government 
whenever  the  public  good  requires  it;  a  provision  found  in  the 
original  Virginia  Bill  of  Rights  and  in  the  Declaration  of 
Independence,  and  upon  the  apparently  self  evident  principle  of 
which  rested  the  theoretical  justification  of  both  the  English 
and  the  American  Revolutions. 

In  the  constitution  of  1870  the  somewhat  prolix  statem.ent 


(1)  ,  Stimson,   supra  p. 20. 

(2)  Art.  IX  Sec.  I . 

(3)  In  the  proposed  constitution  of  1863,  the  convention  adopted 
the  exact  language  of  the  Declaration  of  Independence,  with 
reference  to  these  personal  rights,  addinc,  however,  the 
right  of  acquiring,  possessing  and  protecting  property. 


-11- 

of  the    earlior  consti tutiona  '.7aB  abandoned  for  the  concise 
wording;  of  the  Declar:\tion  of  Independence,  with  the  addition  of 
the  protection  of  property  as  one  of  the  purposes  of  government. 
A  change  in  wording  that  aroused  some  opposition  in  the  constitu 
tional  convention  of  1869  was  the  unqualified  declaration  that  all 
men  are  by  nature  independent,  in  place  of  the  modified  form 
"equally  independent"  contained  in  the  former  constitutions. 
Several  auggestions  were  made  to  alter  this  by  adding  qualifying 
phrases  or  by  striking  it  out  altogether  as  being  contradictory 
to  the  real  place  of  man  before  God  and  among  his  fellovmien,  but 
this    absolute  declaration  of  man's  independence  v/as  retained, 
though  not  found  in  the  early  constitutions,  nor  even  in  the 
Declaration  of  Independence  and  contained  in  but  three  of  the 
thirty  six  other  constitutions  in  force  in  1870. 

In  Illinois,  as  has  been  seen,  the  assertion  of  man's 
independence  was  never  qualified  by  considerations  of  race  or 
color  but  extended  in  meaning,  as  it  did  in  terms,  to  all  men. 
Liberty  and  property  as  used  in  the  constitution  have  been 
repeatedly  defined  by  the  courts  in  cases  involving  alleged 
violations  of  the  due  process  of  lav/  provisions  and  may, ther efose, 
best  be  considered  in  the  discussion  of  the  following  section. 


—  i.  fc*. 

(1) 

SECTION  II 

Section  3  contains  the  prohibiten  against  deprivation  of  life, 

liberty,  or  p-operty  without  due  proceDi  of  la"^  '.vhioh  has  proved 

to  be  the  moat  effective  guarantee  of  individual  righto  as 

against  the  government,  not  only  as  interpreted  and  enforced  by 

the  state  courts    but  also  as  applied  b/  the  federal  courts 

under  the  fourteenth  amendment  of  the  United  States  constitution. 

The  first  constitution  of  Illinois    declared  that  no  freeman 

should  be  imprisoned  or  disseized  of  his  freehold,  liberties  or 

privileges,  or  outla'ved  or  exiled  or     in  any  manner  deprived  of 

his  life,  liberty  or  property  but  by  the  judgment  of  his  peers 

or  the  IccM  of  the  land.    This  provision  was  virtually  a  copy 

of  chapter  59  of  the  Great  Charter  of  King  John  of  1315  as 

airi ended  and  affirmed  by  chapter  35  of  the  Great  Charter  of  Henry 

(3) 

III,  two  years  later,  with  the  addition  of  the  phrase,  "'or 

deprived  of  his  life,  liberty  or  property." 

The  second  article  of  compact  in  the  Northwest  Ordinance  of 
1787  had  also  declared  that  no  man  should  be  deprived  of  liberty, 
or  property  but  by  the  judgment  of  his  peers  or  the  lav/  of  the 
land  and  similar  provisions  had  been  embodied  in  more  than  two 
thirds  of  the  state  constitutions  in  force  in  1818,  though  not 
generally  limited  to  freemen,   a  limitation  probably  retained 
in  the  constitution  of  Illinois  merely  by  oversight. 

(l)     "iTo  person  shall  be  deprived  of  life,   liberty  or  property 
without  due  process  of  law.  "Constitution  of  Illinoi s, 1870, 
Art.  II  sec.  3. 

(3)     Stubbs  "Select  Charters"  pp.  301,  346. 


-15- 

ITo  chanf;e  was  made  in  the  wordinr:  of  this  section  until  the 
adoption  of  the  present  constitution,  when  the  esaence  of  the 
provision  was  embodied  in  the  short  statcrrient  of  the  present 
section  copied  from  amendments  five  and  fourteen  of  the  Federal 
constitution,  the  latter  of  which  had  been  adopted  but  a  year 
before  the  constitutional  convention  of  1869  met  in  Springfield. 
At  that  time  about  one  third  of  the  state  constitutions  still 
retained  the  original  form,   "but  by  the  judgment  of  his  peers",  - 

which  meant  trial  by  jury  and  "or  the  laws  of  the  land"  -  v/hich 

'  (1) 

meant  indictment  and  procedure  at  common  law,  -      though  a  number 

emplo^red  its  nov;  famous  equivalent  "by  due  process  of  law".  This 
phrase  appeared  first  in  the  Statute  38  Edward  III,  Chapter  3 
and  Was  not  found  in  any  state  constitutions  prior  to  the 
adoption  of  Amendment  V  in  the  constitution  of  the  United  States. 

This  constitutional  guarantee  of  life,   liberty  and  property 
against  deprivation  save  by  due  process  of  law  has  been  expou:-ded 
and  applied  in  an  enormous  mass  of  cases  in  this  state,  as  in 
all  the  others,  which  it  would  be  impossible  to  discuss  in 
detail,  though  a  few  general  definitions  may  be  helpful  in 
showing  the  remarkable  scope  of  this  apparently  sim^ple  provision. 

"Liberty"  as  used  in  the  constitution  means  not  only  freedom 
from  servitude  and  restraint,  but  also  the  right  of  every  man  to 
be  free  in  the  use  of  his  powers  and  faculties  and  to  adopt  and 


(1)     Stimson  "Federal  and  State  Constitutions  of  the 
United  States",  p. 16. 


-14- 

pursue  such  a  vocation  or  cnlling  a3  he  iriay  choose,   subject  only 

(1) 

to  the  restraint  neceoaary  to  secure  the  conr.on  v/elfare. 

"Froper'-y"  is  not  only  the  physical  thing  which  may  be  the 
subject  of  o'.mership,  but  al30  the  right  of  dominion,  possession 
and  po'.7er  of  disposition  over  it,   and  includes  ac  v/ell  the  ri  ht 
to  acquire  it  in  any  lawful  mode  or  by  fol""  owing  any  lawful  pursui||t 
which  the  citizen  in  the  exercise  of  the  li'^erty  guaranteed  may 
adopt  . 

The  privilege  of  contracting  is  therefore  both  a  liberty  and 

■(3) 

a  property    right  within  the  protection  of  the  constitution,  a 
doctrine  which  has  caused  the  invalidation  of  a  large  number  of 
laws  passed  for  the  protection  of  laborers.     A  number  of  cases 
deal  with  the  question  of  what  are  "vest  rights",  as  these 
only  are  properly  within  the  protection  of  this  class.  So  for 

(4) 

example  there  is  no  vested  right  in  existing  rules  of  e-^ridence 

(5) 

nor  to  particular  remedies       and  in  general  mere  rights  in 

expectancy,  as  the  expectancy  of  inheritance  are  not  vested 

(6)  (7) 
rights.  Rights  of  action  are,  however,  protectt)d         as  are 

also  accrued  defences. 


(1)  Braceville  Coal  Company  v.  People  147  111.  66   (18 93^^ 

(2)  Ibid. 

(3)  Frorer  v.  Peopl^  141  111.  171  (1893) 

(4)  Meadowcroit  v.  People.     165  111.  56  (1896) 

(5)  Smith  V.  Bryan  34  111  .  364  U864) 

[•o)  Cooley  "Constitutional  Limitations."   (Ed.  7)  p. 512. 

(7)  Van  Tuwa.-en  v.  Chicago  61  111.  31  (1871) 

(8)  Mc  Duffee    v.  Sinnott  119  111.  449  (1887) 


-15- 

"Due  proce.'33  of  law"  has  been  variously  defined  and  varioaal 
interpreted,  but  no  definition  can  be  at  the  aarrie  time  comprehen- 
oive  and  accurate.  It  is  aynonyrnous  with     "the  law  of  the  land" 
and  Cooley  cites  with  approval  the  definition  of  thia  latter 
phrase  siven  by  Webster  in  the  jOartmouth  College  Case.  "By  the 
"la'-v  of  the  land"  is  most  clearly  intended  the  general  lav/,  a 
law  which  hears  before  it  condemns;  '.vhich  proceeds  upon  inquiry 
and  renders  Judgment  only  after  trial,  '^he  meaning  is  that  every 
citizen  shall  hold  his  lif  e,  lib-:'rty,  property,  and  immunities 

(1 

under  the  protection  of  the  general  rules  which  govern  society." 

Very  similar  is  the  definition  rriven  by  the  Illinois  Supreme 
(3) 

Court . 

Without  examining  in  detail  the  different  applications  of 
the  requirement  of  due  process  it  suffices  here  to  mention  that 
it  demands  the  equal  protection  of  the  laws,  excluding  unreason- 
able class  legislation,   that  i s, 1 egi slati ve  discrimination  not 

(3) 

based  on  reasonable  differences,        laws  tending  to  grant 

monopoly  rights  and  the  imposition  of  special  bmrdens  and 

(4) 

liability  without  just  cause.        In  the  judicial  proceedings 

themselves,  it  makes,  above  all,  the  requirement  of  competent 

jurisdiction  in  the  tribunal  undertaking  to  affect  the  property 

(5) 

rights  of  individuals. 


(l)     Cooley  ^Consti tutional  Limitations."  p.  503. 
(3)     Millet     V.  People  171  111.  399  (1398) 
(3)  Ibid. 

Bessette  v.  People  193  111.  334  (1901) 
(5)     Bickerdike  v.  Allen  157  111.  95  (1896) 


\ 

\ 


-16- 

The  moat  important  limitationa  on  the  individual's  right  to  the 

undisturbed  enjoyr.ent  of  his  property,  bedides  the  right  to 

eminent  domain,  and  the  taxing  povrer,  is  the  ao-callecl  police 

power  of  the  state.  But  even  this  pov;er  can  be  exercised  only 

within  the  bounds  necesoary  to  pi^tect  the  public  health  safety 

and  comfort,  and  any  interference  beyond  ':hat  violates  the 

(1) 

guarantee  of  due  process  of  law. 

(2) 

Section  III 

Liberty  of  conscience  and  freedom  of  religious  worship  were 
of  course  regarded  by  the  American  colonists  as  one  of  the  most 
essential  of  the  inherent,  inalianable  rights  of  men,  and  the 
religious  persecutions  in  their  mother  country  had  profoundly 
convinced  them  of  the  need  of  guar-^nt eeing  this  right  against 
governmental  interference.  Accordingly  there  is  found  in  the 
first  constitutional  declaration  of  man's  rights  viz.,  the 
Virginia  Bill  of  Rights  of  1776,   a  guarantee  of  religious  freedom 


(1)  Ruhstrat  v.  People  185  111,  133  (1900) 

(3)  "The  free  exercise  and  enjoyment  of  religious  profession 

and  worship,  without  discrimination  shall  forever  be  guaranteed; 
and  no  person  shall  be  denied  any  civil  or  political  right, 
privilege  or  capacity  on  account  of  his  religious  opinions; 
but  the  liberty  of  conscience  hereby  secured  shall  not  be 
construed  to  dispense  with  oaths  or  affirmations,   excuse  acts 
of  licentiousness  or  justify  practices  inconsistent  with  the 
peace  or  safety  of  the  state.    No  person  shall  be  required  to 
attend  or  support  any  ministry  or  place  of  worship  agai;^his 
consent,  nor  shall  any  preference  be  given  by  law  to  any  religiou 
denomination  or  mode  of  worship." 

Constitution  of  Illinois,   1870.  Art.  II  Sec.  3. 


.1 


1 


-17  - 

notwithstanding  that  the' Anglican  chur'ch  v;aa  then  the  established 

ohurch  of  that  comnonweal th .  Similar  guarantee3  of  the  liberty 

of  conscience  and  religiouo  worahip  -vere  inserted  into  all  the 

subsequent  constitutions  adopted  before  Illinois  became  a 
(1) 

state,      -  with  the  single  exception  of  Louisiana  1812,  in 

which  state  the  prevailing  religion  wa^  that  of  the  Roman 

(2) 

Catholic  Church  ~    and  the  first  article  of  cor.ipact  of  the. 

Northwest  Ordinance  declared  that  no  person  demeaning  ^imself 

in  a  peaceable  and  orderly  manner  should  ever  be  molested  on 

(3) 

account  of  his  mode  of  worship  or  religious  senti^ients. 

In  the  first  constitution  of  Illinois,  the  guarantee  of 
liberty  of  conscience  and  religion  contained  detailed  provisions 
taken  from  a  number  of  different  constitutions,  relative  to 
the  natural  and  indefeasible  right  to  worship  according  to  the 
diet ate 3  of  one's  own  conscience  and  the  freedom  from  control 
in  that  respect  by  any  human  authority;  immunity  from  taxation 
for  the  support  of  any  place  of  worship  or  ministry;  prohibition 
on  giving  preference  by  law  to  any  religious  establishment  or 
mode  of  v/orship  and  a  requirement  that  no  religious  test  ever 
be  demanded  a3  a  qualification  to  any  office  in  the  state. 
These  provisions  were  all  adopted  ver^oatim  into  the  constitutinn 
of  1848,   as  also  into  the  proposed  constitution  of  1832.  In  the 

(1)  In  a  number  of  the  states,  however,  political  equality  was 
assured  to  those  only  who  professed  the  Protestant  faith. 

(2)  The  irrench  Declaration  of  the  Rights  of  Man  had,  however, 
guaranteed  the  free  exercise  of  religion.  Rights  of  Han, 
section  7.  Lieber  "Civil  Liberty  and  Self  Governr.ent"  p. 537. 

(3}     Thorpe  ''American  Charters,  Constitutions  and  Organic  Laws," 
2  p.  960. 


-18- 

convention  of  184B  the  conir.ii tt ee  reported  a  quial if i cation  on 
the  prohibiton  acainot  being  compelled  to  erect  or  si.ipport  a 
place  of  worship  against  one's  cono??nt,  by  the  addition  of  the 
words  "contrary  to  what  he  has  deliberately  and  voluntarily 
engaged  to  perform."    This  qualifying  phrase,  vvhich  was  found 
in  a  number  of  the  other  constitutions,  might  have  pro\''ed  to  be 
of  considerable  importance  had  the  state  courts  taken  the  same 
view  of  the  language  of  this  prohibition,   that  the  United  States 
Supreme  Court  did  of  the  prohibition  of  the  thirteenth 
amendment  of  the  federal  constitution  by  which  "involuntary 
servitude"  was  held  to  mean  personal  service,  involuntary  at 
time  of  performance  even  though  voluntarily  contracted  for. 

The  section  in  the  present  constitution  v/ith  reference  to 
religious  freedom  and  liberty  of  conscience  is  even  more  comprs- 
hensive  than  that  of  the  former  constitutions,  though  in 
substance  quite  similar.    The  added  provision  that  "no  person 
shall  be  denied  any  civil  or  political  right,  privilege  or 
capacity  on  account  of  his  religious  opinions"  had  been  reported 
out  by  the  committee  in  the  convention  of  1348,  but  was  omitted 
in  the  section  as  finally  adopted.  It  was  introduced  to  cover 
both  the  matter  of  competency  of  v/itnesses  as  found  in  the  Hew 
York  constitution  of  1846  as  well  the  then  existing  Illinois 
provision  as  to  religious  tests  as  qualifications  for  office, 
omitted  in  the  present  constitution. 

The  express  limitation  of  the  guarantee  of  liberty  of 
conscience  so  as  to  exclude  the  requirement  of  oaths  or 
affirmations  and  the  commission  of  acts  of  licentiousness  or 
practices  inconei  stent  v;ith  the  peace  or  safety  of  the  State 


-19- 

wao  not  found  in  the  conati tution  of  1848,   though  the  then  recent 
trouble  with  the  Mormons  would  have  seemed  to  call  especially 
for  such  a  rroviso  at  that  time.  In  the  convention  of  1869 
the  introduction  of  this  proviso,  then  found  in  over  one  third 
of  the  existing  constitutions,  called  forth  considerable 
opposition  to  its  adoption  on  the  ground  that  the  proviso  was 

a) 

inconsistent  with  the  preceding  guarantee  of  religious  freedom. 

The  last  sentence  of  the  section  vix.,  the  prohibition  on 

compslling  attendance  on  or  support  of  any  ministry  or  place  of 

worship,   and  on  giving  any  preference  by  lav;  to  any  religious 

denomination  or  mode  of  worship  presents  no  material  change  from 

the  earlier  provisions  on  these  points.  In  the  convention  of 

1869  there  were  presented  four  petitions,  requesting  an  express 

constitutional  protection  of  the  right  to  observe  the  seventh 

day  of  the  week  as  the  Sabbath,  and  an  additional  section 

exempting  persons  who  conscientiously  observe  the  seventh  day 

as  the  Sabbath  from  answering  civil  process  on  that  day,  was 

(2) 

moved  and  adopted,  but  on  reconsideration  was  struck  out. 

The  Illinois  cases  construing  this  section  of  the  const i tut ioWi 
are  few  in  number,  but  some  ofthe  general  principles  to  be 

(1)  Debates  of  Convention  of  1869  p.  1560. 

(2)  Ibid,  pp.  1563,  1777. 


-20- 

g.itliered  from  the  construction  of  similar  provisions  in  other 

constitutions  will  show  how  the  courts  have  in  {general  viewed 

the  protection  embodied  in  such  provisions.  The  express  prohi bi ti^lns 

of  the  section  guarantee  not  only  religious  toleration,  but 

religious  ^quality.    They  do  not,  however,  prohibit  the  author^ 

ities  from  such  solemn  recognition  of  a  superintending  Providence 

in  public  transactions  and  exercises  as  the  general  religious 

(1) 

sentiment  of  mankind  inspires.  Nor  does  the  right  of  free 

thinking  and  free  speech  justify  blasphemy,  or  prevent  its 

punishment  by  the  law,  when  uttered  in  a  wanton  manner  with  a 

wicked  and  malicious  disposition  and  not  in  a  serious  discussion 

(2) 

upon  any  controverted  point  in  religion.         Laws  requiring  the 

observance  of  the  Christian  Sabbath  are  almost  universally  upheld 

as  not  violating  this  constitutional  provision,  though  ^ooley 

(3) 

questions  the  entire  soundness  of  that  view. 

In  Illinois  under  the  present  constitution  the  right  to 

testify  is  included  among  the  civil  rights,  privileges,  and 

capacities  which  al*e  protected  by  this  section  against  denial 

by  reason  of  religious  opinions,      though  under  the  earlier 

constitutions  an  atheist  was,  in  accordance  with  the  common  law 

(5) 

rule,  incompetent  as  witness.         The  oonstitution  of  1870, 
therefore,  abrogated  all  restrictions  as  to  the  competency  of 


(1)  Cooley  "Constitutional  Limitations,"  p.  668. 

(2)  Cooley  "Constitutional  Limitations,"  p.  673. 

(3)  Ibid.  p.  575. 

(4)  Ewing  V.  Bailey  36  111.  App.  191.  (1890) 

(5)  Central  Military  Tractte  Railroad  Company  v.  Rockfellow  17 
111.  541    (185G)  ~~   ' 


witneotiea  on  account  of  defect  of  religious  belief. 

(3) 

Section  4 

Liberty  of  speech  and  of  the  press,  under  certain  limitations, 

Was  protected  in  England  by  the  principles  of  the  common  law, 

and  considered  essential  to  the  nature  of  a  free  state.  But  in 

England,  for  years  before  the  American  Revolution,  there  had 

been  serious  invasions  of  this  right,  and  in  the  American  coloniec 

(5) 

there  had  never  been  any  real  freedom  of  speech  or  of  the  press. 

In  the  seventeenth  century  Milton  had  in  England  championed  these 

liberties  in  his  Areopar.i tica  and  the  numerous  appeals  to 

natural  law  ty  James  o^^'^  and  John  and  Samuel  Adams  in  the 

American  colonies  all  included  them  among  the  fundamental 

(4) 

individual  rights.      The  Virginia  Bill  of  Rights  declared  the 
freedom  of  the  press  to  be  one  of  the  great  bulwarks  of  liberty 
which  could  never  be  restrained,  and  in  1818  the  federal 
constitution  and  all  the  state  constitutions  but  two  viz.,  Nev; 
Jersey,  1776  and  ^ew  York,  1777,   contained  similar  provisions 
as  to  freedom  of  the  press,  a  number  of  them  expressly  protecting 
also  the  liberty  of  speech. 

(1)  Hrouek  v.  People  134  111.  139,  (1890) 

(2)  "Every  person  may  freely  speak,  write  and  publish  on  all 
subjects,  being  responsible  for  the  abuse  of  that  liberty, 
and  in  all  trials  for  libel,  both  civil  and  criminal,  the 
truth  when  published  with  good  motives,   and  for  justifiable 
ends  shall  be  a  sufficient  defence . "Gonsti tution  of  Illinois 
1870,  Art.  II  Sec  4. 

(3)  White  "The  constitution  of  Pennsylvania,"  Cap.V. 

(4)  Scherger  "Evolution  of  Modern  Liberty"  Cap.  IX. 


In  the  firgt  conotitution  of  Illinoio  freedom  of  the  press 
•'.va9  guaranteed  to  all  v7ho  exanined  the  proceedines  of  any  branch 
of  the  government,  this  hateing  been  the  point  of  attack  by  the 
English  government  in  the  past,   and  to  every  citizen  was 
guaranteed  the  right  to  freely  speak,  write  and  print  on  any 
subject,  being  responsible  for  the  abuse  of  that  liberty.  These 
provisions  v/ore  embodied  v/ithout  change  in  the  constitution  of 
1848  and  in  the  proposed  constitution    of  1863. 

In  the  constitution  of  1870  all  but  the  last  sentence  was 
omitted  which  contained  the  essence  of  the  entire  section,  and 
every  one  of  the  twenty  six  other  state  constitutions  then  in 
force,  guaranteed  freedom  of  the  press,  which  of  course  includes 
freedom  of  speech,   either  to  all  persons,  as  is  the  case  in  the 
Illinois  constitution  of  1870,  or  to  all  citizens  as  was  done 
in  the  earlier  Illinois  constitutions. 

The  establishment  of  truth  when  published  with  good  motives 
and  justifiable  ends,   as  a  sufficient  defense  in  all  trials  of 
libel,  both  civil  and  criminal  was  inserted  to  protect  more 
specifically  the  liberty  of  press  previously  guaranteed  in 
general  terms.    In  the  constitution  of  1818  it  was  declared 
that  in  prosecutions  for  the  publication  of  papers  investigating 
the  official  conduct  of  officers,  or  of  men  acting  in  a  public 
capacity,  or  where  the  matter  published  is  proper  for  public 
information,  the  truth  might  be  given  in  evidence,   and  that 
in  all  indictments  for  lia^s^  the  jury  should  have  the  right 
of  determining  both  the  law  a:-d  the  fact,   as  in  other  cases. 

At  common  law,  there  had  been  an  important  distinction 


i, 


between  civil  actiona  for  libel,  and  criminal    prosecutions  for 

the  sane  as  to  both  of  these  provisions,  vis.,  the  admi saibility 

of  truth  as  a  d-^^^ense,   and  the  function  of  the  jury  in  a  trial 

for  libel.    Wliile  truth  of  the  matter  published  '.vao  always  a 

defense  to  a  civil  action  for  libel,   since  a  man  had  no  ri^ht 

to  a  better  reputation  than  his  real     character  deserved,  and 

Was,  therefore,  not  injured  by  any  true  fitatemsnt  concerning 

him,   in  criminal  prosecutions  for  li^jel,  the  truth  of  the 

matter  published,  bein^  rather  a  greater  provocative  to  the 

person  libelled,  to  retaliate  by  acts  involvinr^  a  breach  of 

peace  -  which  last  consideration  was  the  original  basis  of  all 

common  law  jurisdiction  of  crimes-could  not  be  pleaded  as  a 
(1) 

defense.      This  rule  as  regards  criminal  libel  was  changed  in 
England  by  Lord  Campbell's  Act,  6  &  7  Victoria,  Chapter  96, 
and  the  provision  in  the  Illinois  constitution  of  1818  expresses 
in  other  terms  the    general  form  of  the  change  in  law  admitting 
truth  as  a  defense  when  published  with  good  motives  and  for 
justifiable  ends. 

As  regards  the  function  of  the  jury  in  trials  for  libel,  the 
common  law  rule  in  civil  actions  left  it  to  the  jury,  if  the 
words  published  were  ambiguous,  to  decide  whether  or  not  they 
were  libellous,  that  is,  to  p-.ias  on  both  the  law  and  the  fact. 


(1)     Chase's  Black  stone.  Book  III.  Cap.  VI. 


The  3ame  doctrine  wa3  asserted  in  several  early  casea^s  regardo 

criminal  proaiacuti ona  for  libel,  but  wao  subsequently  greatly 

controverted,   and  was  certainly  an  anomolous  one  in  the  criminal 
(1) 

law.      But  by  the  Fox  Act  of  1774  the  jury  nas  permitted  to 
render  a  verdict  of  guilty  or  not  guilty  upon  the  whole  matter 
in  issue,  and  thus  act  as  judges  both  of  the  law  and  the  fact 
in  criminal  prosecutions  also.    The  provisions  in  the  Illinois 
constitution,   therefore,   adopted  the  later  statutory  rule  in 
both  of  these  regards  as  guaranteeing  fundamental  rights,  as 
had  also  previously  been  done  in  six  other  constitutions  of  that 
time.    The  constitution  of  1848  and  the  proposed  constitution 

186^^,  both  contained  the  above  provisions  without  the 
slightest  change. 

In  the  present  constitution  of  Illinois,  the  truth^when 
published  with  good  motives  and  for  justifiable  ends ^ was  made 
a  sufficient  defense  in  both  civil  and  criminal  trials,  re- 
affirming the  former  provision  as  to  criminal  trials,  and^also 
placing  the  defendant  in  a  civil  suit  under  the  same  consti tutiana 
protection.  By  1870  the  great  majority  of  the  other  states  had 
inserted  a  constitutional  provision  like  that  in  the  Illinois 
constitution  of  either  1348  or  1870.  In  the  convention  of  1869, 
the  newspEipers  of  the  state  sought  additional  protection  in  a 
petition  requesting  an  addition  to  the  provision  as  to  libel  to 
the  effect  that  "it  shall  in  all  cases  be  incumbent  upon  the 
plaintiff  to  prove  malice",  a  change  in  the  common  law  rule  v/hich 


(1)     Chase's  Blackstone,  Boo^l  III  Cap.  VI. 


-85- 

miffht  hay;  proved  a  moot  undeoirable  piece  of  constitutional 

(1) 

legialntion  and  which  was  wisely  rejected. 

The  provisions  of  the  American  Bills  of  Rir^hts  on  the 

liberty  of  the  press  have  been  quite  generally  considered  to 

mean  only  that  liberty  of  publication  without  the  previobs 

permission  of  the  government,  which  was  obtained  by  the  abolition 

of  the  censorship  and  not  to  the  change  the  comr..on  lav/  rules  as 

to  responsibility  for  libel.     Rut  Cooley  considers  it  to 

include  "not  only  liberty  to  publish,  but  complete  immunity 

from  legal  censure  and  punishm.ent  for  the  publication  so  long 

as  it  is  not  harmful  in  character  when  tested  by  the  common 

law  standards  in  force  when  the  constitutional  guarantees 

were  establislied  and  in  reference  to  v/hich  the^^  have  been 
(2) 

adopted,"  the  phrase  "being  responsible  for  the  abuse  of 
that  liberty"  meaning,  therefore,  subject  to  the  common  law 
liability  for  defamation. 


(1)  At  common  law  malice  was  conclusively  inferred  from  the 
falsity  and  defai'iatory  nature  of  the  charge,  unless  the 
defendant  established  privilege  of  communication. 
Ghase's  Blackstone,  p.  683. 

(2)  Cooley  "Constitutional  Limitations"  p.  6G5. 


-26- 

(1) 

Section  5. 

Of  the  concrste  rights  to  which  the  ooloniots  by  reason  of 
their  English  descent  laid  claim,  no  longer  aa  English  subject  a, 
however,  but  ac  individuals  in  a  state,  one  of  the  moat  precious 
and  essential  ^ao  the  right  of  trial  by  jury.  This  ancient 
bul'-^ark  of  English  individual  liberty  whose  origin,  according 
to  Blackstone,   is  to  be  sought  as  far  back  as  the  Saxon  colonies, 
though  not  firraly  established  until  the  abolition  of  V.-.e  Saxon 
trials  by  ordeal,   and  the  Normal  trial  by  battle,  was  first 
formally  declared  by  Magna  Charta  of  King  John  in  1215  in  the 
king's  colemn  agreement  that  no  freer.an  should  be  hurt  in 
either  his  person  or  property,   "unless  by  the  legal  judgment 
of  his  peers  or  the  law  of  the  land."    The  chief  grievance  in 
the  Petition  of  Right  of  1628  was  the  violation  of  this  provision 
and  among  the  oppressions  of  King  George  III  enumerated  in  the 
Declarn.tion  of  Independence  was  that  of  depriving  the  colonists 
in  many  cases,  of  the  benefits  of  trial  by  jury.  Small  wonder, 
therefore,  that  every  one  of  the  constitutions  of  the  revolu- 
tionary period  contained  express  guarantees  of  jury  trial,  a 
precendent    of  constitutional  practice  which  has  persisted  down 


(l)     "The  right  of  trial  by  jury,   as  heretofore  enjoyed,  shall 
remain-'  inviolate,  but  the  trial  of  civil  cases  before 
justices  of  the  peace,  by  a  jury  of  less  than  twelve  men 
may  be  authorized  by  law."    Constitution  of  Illinois, 
1870,   Art.  II,  95. 


-27- 

to  the  latest  constitutions,   at  least  as  regardB  criminal 

(1) 

prosecutions  for  major  offenses.  Jury  trial  v/as  also  expressly 
protected  in  the  Northwest  Ordinance  of  1787. 

The  Illinois  constitution  of  1818  contained  the  simple 
provision  that  the  right  of  trial  by  jury  should  remain  inviolate 
but  in  the  constitution  of  1848  there  was  added  the  stipulation 
that  it  should  extend  to  all  cases  at  la'.?,  without  regard  to 
the  amount  in  controversy,  a  provision  not  found  in  any  other 
st-.te  constitution,   in  a  n^-mber  of  which,   indeed,  there  were 
mentioned  expres3  exceptions  to  the  general  requirement  of  jury 
trial . 

The  present  constitution,   though  declaring  that  the  right  of 
trial  by  jury       heretof ore  enjoyed,   should  remain  inviolate, 
adds  that  the  trial  of  civil  cases  before  justices  of  the  peace 
by  a  jury  of  less  than  txvelve  men,  might  be  authorized  by  law, 
which  is  a  direct  reversal  of  the  provision  in  the  constitut ion: 
of  1848,   and  had  already  been  embodied  in  the  proposed  consti- 
tution of  1863.    This  proviso,  might  it  seoms,  be  regarded  as 
one  ijranif estation  of  a  growing  conviction  that  the  sacred  and 
time-honored  trial  by    jury,  however  worthy  of  esteem  and  respect 

(l)     It  is  somewhat  remarkable  that  in  spite  of  the  reverence  of 
the  English  for  the  jury  trial,   and  the  great  emphasis 
placed  upon  it  by  Blackstone  and  others,  whoponsidered  it 
a  right  of  vital  importance,   firmly  established  as  a 
constitutional  principle  cf  English  juri -:!prudence  by  the 
Great  Charter,  the  United  States  Supreme  Court  should  have 
declared  that  it  ie,  no  part  6f  "due  process"  as  guaranteed 
by  Am.endment  XIV  of  the  Federal  Constitution.  Walker  v. 
Sauvinet  92  U.s.  90. 


-38- 

by  rea'-^on  of  its  inportont  role  in  the  history  of  individual 

liberty  in  the  past,   is  not  altogether  above  criticiam,  ^nd 

that  whether  b-     reason  of  chan^^ad  external  conditionG,  or 

because  of  the  manner  in  v;hich  it  hao  coine  to  be  administered, 

the  system  of  trial  by  jury  demands  substantial  revi>3ion  to 

keep  it  from  becoming  moce  and  more  a  clog  in  the  wheels  of 

justice.     Considerable  evidence  of  this  feeling  v/as  found  in 

various  motions  relating  to  jury  trial  introduced  in  this  con- 

(1) 

vention  of  1869;      one  of  which  proposed  to  add  that  a  concur- 
rence of  three  fourths  of  a  y^'-^V  should  in  all  cases  constitute 
a  verdict.     Several  other  less  radical  modifications  were 
offered,  but  one  proposal  went  sc  far  as  to  authorize  juries  to 
teturn  a  verdict  of  "not  proven,"  after  '7hich  the  defendant 
might  again  be  indicted  for  the  sar.e  offence  upon  additional 
evidence  being  di covered. 

The  guarantee  of  jury  trial  "as  heretofore  enjoyed, "  means 
not  as  enjoyed  in  1863  by  statute,  but  as  enjoyed  by  the  common 
law  of  England.    This  means  that  irycase  of  a  person  charged 

with  felony,    "a  jury  of  tr^elve  men  must  be  impanelled;  the  jury 
must  be  indifferent  between  the  prisoner  and  the  people;  they 
must  be  summoned  from  the  vicinage  or  body  of  the  countf'y  in 
which  the  crime  was  alleged  to  have  been  committed;  they  must 
unanimously  concur  in  the  verdict,   and  the  court  cannot  interfere 
to  coerce  them  to  agree  upon  a  verdict  against  their  convictions. 

This  right  to  trial  by  jury  cannot  be  v;aived  in  case  of  felony 

(3) 

except  by  a  plea  of  guilty,       but  in  cases  of  misdemeanour  the 

(1)  Debates  of  the  Convention  of  1869  pp.1567,  1568. 

(2)  George  v.  People. 167  111.  446  (1897) 

(3)  Morgan  v.  People. 156  111.151. 


(1) 

defendant  may  put  himself  upon  the  court  for  tirlal*  This 

guarantee  extending  only  to  cases  in  which  jury  trial  was 

required  at  common  law  does  not  extend  to  cases  of  contempt 

proceedings,   equity  proceedings,   statutory  proceedings  not  known 

to  the  common  law,   eminent  domain  proceedings  etc.,   in  which  the 

(3) 

common  law  procedure  was  not  applif^d. 

(3) 

Section  6 

At  common  law  the  citizen  was  protected  against  seizure 

of  person  of  property  by  very  strict  rules  regarding  the  issuing 

of  warrants,  and  immunity  in  his  home  against  unreasonable 

searches  and  seizures  waa  embodied  in  the  maxim  that  "every  man's 

house  is  his  castle."    The  desire  of  the  colonists  to  protect 

these  tights  Ty   constitutional  provisions  is  traceable  in  part 

to  the  abuse  of  executive  authority  in  England  in  violating  these 

rights  in  order  to  obtain  evidence  of  political  offences,  which 

(4) 

practice  was  finally  overthrown  in  1765  by  Lord  Camden. 

In  the  colonies  themselves,  moreover  the  practice  of  issuing 
writs  of  assistance  to  the  revenue  offices,  authorizing  them  to 


(1)     Darst  V.  People,  51  111.  386.  (1869) 

(3)     184  111.  475;  173  111.  144;  103  111.  367;  23  111.  202. 

(3)     "The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects  against  unreasonable  searches 
and  seizures  shall  not  be  violated,  and  no  v/ arrant  shall 
issue  without  probable  cause,   supported  by  affidavit, 
particularly  describing  the  place  to  be  searched  and  the 
persons  or  things  to  be  seized."  Constitution  of  Illinois/ 
1870,  Art.  II  Sec.  6. 


(4)     Cooley,   "Constitutional  Limitations."  pp.424  ff.page  424  ff. 


-30- 

aearch  suspected  places  at  their  discretion,  had  already  caused 
great  dissatisfaction  ten  years  before  this  date  and  had  been 
denounced  by  Otis  as  "the  worst  instrument  of  arbitrary  pov/er, 
the  most  destructive  ibf  English  liberty  and  the  fundar:ental 

(1) 

principles  of  law  that  ever  was  found  in  an  English  law  book." 

This  prohibition  of  general  warrants  has  been  characterized  as 

the  only  constitutional  principle  to  be  first  established  in 

(2) 

America  and  later  adopted  in  England. 

The  Virginia  Bill  of  Righto  of  1776  had  contained  an  express 
prohibition  on  general  warrants  of  search  and  seizure  which  was 
•ncorporated  in  the  Constitution  of  IlDinois  1818  following  the 
declaration  that  thg^t  people  should  be  secure  in  their  ^persons 
houses,  papers  and  possessions  fron  unreasonable  searches  and 
seizures.  Almost  all  of  the  other  constitutions  of  1818  contained 
similar  proMsions,  and  this  section  in  the  constitution  of  1818 
v;as  retained  without  change  in  the  constitution  of  1848,  at  which 
time  all  but  four  of  the  twenty-eight  other  constitutions 
embodied  similar  provisions. 

There  was  no  alteration  of  this  section  in  the  constitution 
of  1863,  but  the  convention  of  1869  changed  the  phr-aseology 
somewhat  by  adopting  verbatim  the  form  of  the  fourth  amendment 
to  the  federal  constitution.    At  the  time  of  the  f  rami  ng  ^s^'Se 
present  o©nstitution  there  was  one  state  constitution  only  which 
did  not  contain  a  similar  provision,  viz.,  Nev/  York  1846,  which 


(1)  Gooley,   "Constitutional  Limitations."  pp.  424  ff. 

(2)  Stimson  "Federal  and  State  Constitutions  of  the 
United  States."  p.  149  n.lO. 


still  continued  under  the  constitution  in  force  in  1348,  when 

the  prior  Illinois    constitution  W3.8  adopted  . 

The  purpose  of  this  conati tutiona.1  prohibition  was  to 

establish  the  couimon  lav;  as  to  searches  and  seizures,  which  had 

always  been  extrem-ely  jealous  of  the  right  of  the  individual^ 

to  immunity  from  such  interference  with  his  person  and  property. 

Unreasonable  searches  and  seizures  are  those  without  warrant 

properly  obtained  in  cases  where  the  comrion  law  required  them. 

Rut  atrests  without  warrant  are  not  abridged  by  the  constitution 

where  such  arrests  could  be  made  at  common  law  before  its 

adoption.        Probable  cause  must  be  shown  by  the  production  of 

evidence  satisfactory  to  the  court  of  such  facts  as  to  convince 

(3) 

the  magistrate  that  the  suspicion  is  well  founded,       and  to 

justify  the  issuing  of  a  warrant  the  affidavit  must  state  either 

that  the  person  therein  described  cormitted  the  offence  or  that 

the  person  making  the  complaint  has  just  and  reasonable  grounds 

to  suspect,  or  does  in  fact  suspect  that  he  is  guilty  of  the 
(3) 

offense . 


(1)  north  v.  People  139  111.  81  (1891) 

(2)  White  V.  Wag;ar    185  111.  195. 

(3)  Housh  V. .People    75  111.  487  (1874) 


-33- 

(1) 

Section  7, 

The  provision  that  all  persons  shall  be  bailable  by  oufficiart 

sureties  except  for  capital  offences  v/here  the  proof  is  evident 

or  the  presumption  great  represents  in  effect  the  common  law 

(2) 

rule  of  England  as  to  bail.        Since  by  the  concept  of  the 
common  law  every  man  was  regarded  innocent  until  proved  guilty, 
it  followed  also  that  every  man  was  to  be  treated  with  all 
possible  leniency  even  after  arrcb't  for  crimes  and  that  con- 
finement in  jail  should  not  be  resorted  to  if  the  appearance 
of  the  accused  for  trial  could  be  assured  in  some  other  way« 
Hence  at  common  law  every  man  was  entitled  to  be  released  on 
bail  before  conviction  upon  sufficient  sureties  except  for 
Capital  offences  on  charges  based  on  more  than  a  mere  suspicion, 
when  indeed  the  public  welfare  demanded  the  highest  surety  viz., 
the  custody  of  the  accused  himself. 

Though    the  first  American  Bill  of  Rights  contained  no 
express  guarantee  or  the  right  to  bail,  it  was  impliedly 
guaranteed  in  the    prohibition  against  requiring  excessive  bail, 
which  had  been  forbidden  in  England  bf   Statute  1  W.  and  M.  2, 
Chapter  1,   and  in  the  Northwest  Ordinance  it  had  been  declared 
that  all  persona  shall  be  bailable  unless  for  capital  offences 
where  the  proof  is  evident  or  the  presumption  great. 

(1)  "All  persons  shall  be  bailable  by  sufficient  sureties, 
except  for  capital  offenses,  where  the  proof  is  evident 
or  the  presumption  great;  and  the  privilege  of  the  writ 
0^  habeas  corpus  shall  not  be  suspended,  unless  when  in 
cases  of  rebellion  or  inifasion  the  public  safety  may 
require  it."    Constitution  of  Illinois,  1870.  Art  II 
Sec.  7. 

(2)  Chase's    Blackstone  p  .1001  . 


-33- 

The  first  constitution  guaranteed  the  right  to  bail  in  the 

terms  which  have  been  retained  in  all  three  of  the  later 
(1) 

constitutions.      About  one  half  of  the  constitutions  then  in 

force  contained  similar  express  guarantees  of  the  right  to  bail 

and  most  of  the  others  impliedly  guaranteed  it  by  such  provisions 

as  the  ones  adopted  in  the  Virginia  Bill  of  Rights. 

Closely  connected  with  the  guarantee  of  bail  is  the  guarantee 

of  the  writ  of  habeas  corpus,  which  was  another  common  law  right 

of  English  subjects  and  was  re-affirmed  in  the  Habeas  Corpus  Act 
(2) 

of  1679,      This  writ  which  secured  to  the  individual  a  hearing 
as  to  the  legality  d   his  imprisonment  and  which  was*   and  is, 
characteristic  of  the  English  law  alone,        was  regarded  as  one 
of  the  most  important  of  individual  rights,  and  the  Habeas  Corpus 
Act  as  the  "second  Magna  Chart a  and  stable  bulwark  of  liberties." 

In  England  the  privilege  of  this  writ  could  legally  be 
suspended  in  cases  of  evident  necessity,  but  only  upon  authority 
given  by  Parliament  to  the  Crown.  The  possibility  of  such  an 
exigency  was  provided  for  in  the  first  Illinois  constitution  by 
the  provision  qualifying  the  prohibition  of  suspending  the 

(1)  Illinois  is  the  only  state  that  has  no  prohibition  or 
excessive  bail.  Stimson,   supra  P .  105. 

(2)  Stubbs  "Select  Charters."  p.  517. 

(3)  "There  i s  on  the  continent  nothing  corresponding  to  the 
constitutional  right  of  any  individual  when  arrested  by 

an  officer  of  the  governinent  to  demand  instant  information 
of  the  cause  of  his  arrest  and  to  be  set  at  large  unless 
indicted  ]y   a  grand  jury  for  a  crime  not  bailable  or  for  i 
which  the  person  accused  is  unable  to  give  satisfactory 
bail."    Stimson  "Federal  and  State  Consti tutiolis"  p. 18. 


==—=—^^  ^1 

-34'- 

writ  viz.,   "unless  when  in  casea  of  rebellion  or  invasion  the 
public  safety  may  require  it." 

In  the  Northwest  Ordinance  of  1787  the  inhabitants  of  the 
Territory  had  been  declared  to  be  always  entitled  to  the  benefits 
of  the  writ  of  habeas  corpus,  and  provisions  were  found  in  1318 
in  over  half  of  the  other  state  constitutions  similar  to  the  one 
in  the  first  Illinois  constitution,  which  was  retained  without 
change  in  the  subsequent  constitutions  of  the  state. 

(1) 

Section  8 

The  protection  against  criminal  prosecution  except  after 

indictment  by  grand  jury  that  is,  formal  accusation  by  a  body 

of  from  twelve  to  twenty-three  sworn  men  of  the  c.ov>iaty  extends 

even  farther  back  in  English  criminal  procedure  than  does  the 

right  to  trial  bv  petit  jury  and  has  been  traced  to  the  Hundred 

(2) 

Courts  of  Aethslred.      At  common  law  indictments  or  presentments 
by  grand  jury,  ^vere  required  in  all  cases,  though  for  raisdemeanoui 
the  method  of  accusation  by  information  was  used  as  well, 
especially  in  cases  of  misdemeanors  that  tended  to  disturb  or 
endanger  the  government.     But  this  latter  species  of  proceeding 
was  looked  upon  with  great  disfavor  in  England  because  of  its 
ab^se  in  the  times  preceding  the  revolution,  and  was  there  later 

(1)  No  person  shall  be  held  to  answer  for  a  criminal  offence, 
unless  on  indictment  of  a  grand  jury  except  in  cases  in 
which  the  punishment  is  by  fine  or  imprisonment  otherwise 
than  in  the  penitentiary,  in  cases  of  impeachment  and  in 
cases  arising  in  the  army  or  navy  or  in  the  militia  when 
in  actual  service  in  time  of  war  or  public  danger: 
Provided,  thrit  the  grand  jury  may  be  abolished  in  all  cases.' 
Constitution  of  Illinoi s,  1870, Art .  II.  Sec .8 . 

(2)  Stir<3on  "Federaland  State  Constitutions"  p. 169  n. 


-35- 

(1) 

regulated  ly    statute.      In  America  aloo  this  accusation  by 
information  v/aa  very  unpopular,  though  only  one  of  the  revolu- 
tionary constitutions  viz.,  ITorth  Carolina  1776,  contained  any 
other  guarantee  of  indictment  by  grand  jury  than  that  contained 
in  the  provision  establishing  the  Engli,3h  common  lav/  as  the  law 
of  the  states. 

Wlien,  however,  the  first  constitution  of  Illinois  came  to 
be  framed,  the  Federal  constitution  had  expresoly  guaranteed 
the  right  to  indictment,   and  seven  other  states  had  followed 
this  precedent  in  their  constitutions.  The  Illinois  constitution 
of  1818  provided  that  no  indictable  offence  should  be  proceeded 
against  criminally  by  information,  a  principle  that  went  beyond 
the  common  law  rule  which  r^^cognized  some  kinds  of  offences 
that  could  be  proceeded  against  by  either  indictment:  or  infor- 
mation. The  exceptions  recognized  in  the  constitution  of  1818 
were  the  same  as  existed  at  common  la"',  namely,  trial  by  court 
martial,   and  bv  impeachment,   to  which  proceedings  the  require- 
ment of  grand  jury  indictment  never  applied. 

In  the  constitution  of  1848  indictment  or  presentment  of 
a  grand  jury  was  required  for  all  offences  punished  with  imprison- 
raent  or  death  or  fine  above  one  hundred  dollars,  except  in  cases 
of  impeachment  or  cases  arising  in  the  array  or  navy  or  in  the 
militia  when  in  actual  service  in  time  of  war  or  public  danger. 
Similar  provisions  existed  at  that  time  in  all  but  eight  of  the 

state  constitutions,   and  of  these  eight,   six  were  still  the 

early  constitutions  adopted  before  the  first  Illinois  consti tutioiil 

(1)     Chase's  Blackstone  Cap.  XXI. 


-36- 

Of  the  two  others,  one  wae  that  of  the  civil  law  state  of 
Lcui3iina>   and  thfj  other  was  that  of  Virginia  which  had  retairied 
its  original  Bill  of  Rights  of  1776  in  its  second  consti  tutior. . 

It  appears,  therefore,  that  the  indictment  by  grand  jury 
cawe  to  have  growing  importance  in  the  American  Rills  of  Righfe 
in  the  thirty  years  between  the  framing  of  the  first  and  second 
Illinois  constitutions,   and  in  the  proposed  constitution  of 
Illinois  of  1862  there  was  embodied  the  same  guarantee. 

But  in  the  Illinois  convention  of  1669  there  was  evidenced 

considerable  opposition  to  the  grand  jury  system.  Some  motions 

suggested  a  reduction  in  the  total  number  of  grand  jurymen,  or 

in  the  nunber  required  for  a  finding,  and  some  advocated  the 

abolition  of  the  grand  jury  with  power  in  the  legislature  to 

re-eststbli sh  it, while  others,  more  extreme,  went  to  the  length 

(1) 

of  demanding  complete  abolition.  Several  speeches  in 

strong  denunciation  of  the  evils  of  the  grand  yary  system  were 

(2) 

delivered  while  others  as  warmly  defended  it.        The  agitation 

terminated  finally  in  the  proviso  now  found  in  section  eight 

to  the  effect  jrhat  the  grand  jury  may  be  abolished  by  law  in  all 

Cases,  leaving  the  advisability  of  abolishing  this  ancient 

system  to  be  determined  b/   legislature,  which  that  body  in  the 

forty  years  since  the  authority  v/as  conferred  upon  it  has  not 

(3) 

seen  fit  to  do.      It  is  interesting  to  note  that  of  the  twenty 

(1)  Debates  of  the  Convention  of  18S9  p.  174. 

(2)  Ibid  pp.  1434-1438,  1440-1442. 

(3)  Recent  evidence  of  continued  opposition  to  the  grand  jury 
system  is  furnished  by  the  introduction  into  the  two  last 
sessions  of  the  Illinois  legislature  of  bills  to  abolish  . 
the  system. 


-37- 

four  3tate  constitutions  which  in  1370  expresGly  guaranteed 

indictnient  by  grand  jury,   Illinoi.i  v/as  the  only  one  that  permittee 

it  to  be  abolished    by  the  legislature,  although  Indiana 

which,  however,  had  not  expressly  protected  it,  had  in  1R51 

(1) 

adopted  a  similar  provision. 

In  Illinois  under  the  present  conatitution  v/hat  v;as  practical 
the  conimon  law  rule  as  to  grand  jury  indictment  is  confirmed. 
Indictment  is  essential  to  the  legal  prosecution  of  persons 

(2) 

charged  with  crime  .puni shable  by  penitentiary  imprisonr. ent, 

and  where  conviction  would  result  in  disqualification  to  hold 

(3)  (4) 
public  office,        but  no  to  hold  persons  to  answer  for  misdemeanor 

The  proviso  at  the  end  of  the  section  Virtually  authorizes  the 

legislature  to  change  a  constitutional  provision,  but  that  its 

effect  is  not,  as  night  at  first  appear  to  be  the  case, 

to  nullify  the  whole  section  would  seem  to  be  shown  by  the 

reluctance  evidenced  by  the  subsequent  legislatures  of  this 

state  to  alter  a  system  which  the  constitution  of  tho  state 

evidently  wished  to  favor. 


(1)  Constitution  of  Indiana,  1851  Art.  Vii  Sec  17. 

(2)  Paulsen  v,  P_epp.le  195  111.  507  (1302) 

(3)  People    V,  Ripley,   171  111.  44  (1897) 

(4)  Brewster  v.  People  183,  111.  143  (1899) 


--38- 

(1) 

Saction  9. 

The  rights  of  the  accused  in  criminal  proseoutiono  guaran- 
teed bythig  section,  were  for  the' mo3t  part  rights  to  v;hich 
English  subjects  were  entitled  by  the  con:non  la'^v  and  which  v;ere 
considered  essential  attributes  of  personal  liberty  and  security. 
So  at  common  lav;  an  indictment  could  not  be  tried  unles3  the 
defendant  personally  appeared.     So  also  the  defendant  was 
entitled  to  the  assistance  counsel  as  to  the  matters  of  law 

arising  on  the  trial.    As  to  other  matters  the  defendant  was 
not  entitled  to  cotinsel,  on  the  principle  that  the  judge  should 
be  counsel  for  the  prisoner  and  see  that  the  proceedings  against 
himwere  legal  and  strictly  regular.     Rut  Blackstone  rightly 
speaks  of  this  latter  rule  as  "not  at  all  of  a  piece  with  the 
rest  of  the  humane  treatment  of  prisoners  by  the  English  law" 
and  states  that  the  judges  never  scrupled  to  allow  a  prisoner 
the  assistance  of  counsel  to  instruct  him  what  questions  to 

ask  or  even  to  ask  questions  for  him,  with  respect  to  natters 
(2) 

of  fact. 


(1)     "In  all  criir.inal  prosecutions  the  accused  shall  have  the 
right  to  appear  and  defend  in  person  and  by  counsel; 
to  demand  tns  nature  and  cause  of  the  accusation  and  to 
have  a  copy  thereof;  to  meet  the  witnesses  face  to  face, 
and  to  have  process  to  compel  the  attendance  o^  witnesnes 
in  his  behalf  and  a  speedy  public  trial  by  an  impartial 
jury  of  the  county  or  district  in  which  the  offense  is 
alleged  to  have  been  committed."  Constitution  of  Illinois 
1870  Art.  II  Sec.  9.  ' 


(2)     Chase's  Blackstone  p.  1025. 


-39- 

When  the  prisoner  was  arraigned,   the  indictment,  which 
contained  in  great  detail  all  ipattera  bearing  on  the  accusation 
Was  read  to  hin  that  he  niight  fully  understand  his  charge,  which 
v/as  all  that  was  necesoary  at  a  time  when  the  general  inability 
to  read,   especially  among  the  criminal  classes,  made  a  require- 
ment of  a  copy  for  the  defendant  superfluous. 

The  right  to  meet  the  v/itnesses  for  the  prosecution,  and  to 

question  theiajvas  also  a  xmmon  law  right,  though  the  defendant 

had  no  right  by  the  early  rule  to  introduce  witnesses  in  his 

(1) 

own  behalf  in  capital  cases.      But  by  Statute  1  Ann.  2  ch.  9 
it  Was  declared  that  in  all  cases  of  treason  and  felony  all 
witnesses  for  the  prisoner  should  be  exanined  upon  oath  in  like 
manner  as  the  witnesses  against  him.  Finally  the  right  to  a 
trial  by  a  jury  of  the  county  where  the  fact  was  committed  wac 
also  recognized  by  the  comirion  la.vi  and  insisted  upon  as  one  of 
the  greatest  protections  for  the  accused,  based  on  the  early 
theory  that  the  jurors  were  witnesses,  and  themselves  cognizant 
of  the  commission  or  non-commission  in  their  midst  of  the  act 
charged. 

The  Virginia  Bill  of  Rights  enumerated  substantially  all 

(2)' 

of  these  rights  of  the  accused  and  all  but  three        of  the 
constitutions  in  force  when  Illinois  becarrie  a  state  contained 


(1)  Chase's  Rlackstone  p  .1028  . 

(2)  Ga.  1798,  II. J.  1776,   S.C  1776. 


-40- 

expreaa  proviaiona  of  a  Similar  nature.    T;-.e  firjt  conoti tuticn 
of  Illinoia  declared  the  righta  of  the  accuoed  in  pri-ctically 
the  same  terms  found  in  the  present  constitution,  and  no 
material  change  was  rriade  in  the  aecond  conati tuti on .    The  ri^ht 
ofydefendant  to  conpel  the  attendance  of  vdtneasea  inhia  favor 
had  been  protected  in  two  thirds  of  the  consti tutiona  then  in 
force.    The  present  constitution  contains  the  additional  proviaon 
that  the  accused  have  the  right  to  a  copy  of  the  accusation, 
a  right  guaranteed  in  nine  other  constitutions  in  force  in  1870. 
In  the  constitution  of  1869  it  was  suggested  to  guarantee  to 
the  defendant  t;.e  right  to  have  his  counsel  close  the  argument 
to  the  :ury,  and  also  to  make  non-free-holders  incompetent 
as  jurors,  if  objected  to  on  that  ground,  but  otherwise  no 
changes  in  the  provisions  of  th'~  former  constitutions  were 
proposed. 

The  provisions  of  the  present  constitution,  like  the 

requirements  of  the  common  la'vV  in  this  respect,  refer  only  to 

nisi  prius  trials,  that  is,  not  to  appeals;  or  other  proceedings 
  (1) 

of  review  in  higher  courts.        The  presence  of  the  accused, 

though  essential  in  cases  of  felony,  is  not  necessary  at  the 

(2) 

trial  of  mers  misdemeanours,        and  mayi  in  this  latter  case 
be  Waived  by  him. 

(1)     Field en  v.  People,  138  111.  595  (1889) 

(3)     Rloomington  v.  Heiland  67  111.  378  (1873) . 


-41- 

The  right  to  appear  by  counsel  includes  the  right ^ to  ha^^ 
one's  counsel  allowed  a  reasonable  time  for  argument. 

The  purpose  of  requiring  a  copy  of  tl^e  accusation  io  to 
oecure  such  specific  designation  of  the  offence  charged  as  to 
enable  the  defendant  to  prepare  fully  for  his  defence  and  to 
plead  the  judgment  in  bar  of  a  subsequent  prosecution  for  the 
same  offence. 

The  right  to  meet  the  '.Titnesses  face  to  face  excludes  all 

evidence  by  depooition  in  criminal  trials,  with  the  single 

(5) 

exception  of  dying  declarations. 

The  right  to  a  speedy  trial  guarantees  against  arbitrary 

and  oppressive  delays  only,  not  8uch/a3~lire  due  to  congestion 

(4)  ^ 

of  cases  on  the  docket,      and  the  requirement  of  a  public  trial 

is  not  violated  when  the  doors  of  the  court  room  are  closed  for 

a  temporary  purpose  during  the  trial  of  a  criminal  case  if  not 

(5) 

for  the  purpose  of  excluding  anyone  connected  with  the  trials 

The  guarantee  of  an  impartial  jury  means  a  jury  impartial  in 

(6) 

the  sense  in  which  that  term  was  understood  at  cor.ir.on  lav/,  that 

is  chosen  under  the  safeguards  with  which  the  common  law  surro^nd< 

(7)  ^ 
the  choice  of  jurors.      Finally  the  requirement  of  a  jury  of  the 


(1)  White  V.  People,   90  111.  117.  (1878) 

(3)  West    V.  People. 137  111.  189.  (1391) 

(3)  Starkey  v.  People, 17  111.  17.  (1855) 

(4)  Weyri ch  v.  People, 89  111.  90.  (1878) 

(5)  Stone  v.  People  3  111.  336.  (1840) 

(6)  Coughlin  v.  People  144  111.  140  (1893) 

(7)  See  Chase's  Blackstone.  Cap.  XXV. 


-43- 

county  or  district  may  be  waived  'cy    the  defendant  by  asking  a 

(1) 

change  of  venue. 

(2) 

Section  10 

In  the  sme  catagory  with  the  rights  of  the  accused  protected 

in  the  preceding  section  is  the  freedom  from  self-incrimination 

and  from  double  jeopardy,   iThich  was  also  carefully  protected 

by  the  rules  of  the  common  law.    Firstly,  it  was  an  established 

rule  of  evidence  at  common  law  that  confessions  were  not  admissibl  s 

as  evidence  unlesij  they  were  freely  given  without  fear  of  harm 

^r  hope  or  favor,  and  a  confession  obtained  by  compulsion,  though 

used  when  the  trial  by  ordeal  and  other  inquisitorial  trials 

were  still  in  force  was  not  admissible  in  the  later  common  law 

(3) 

prosecution  of  crimes.  Says  Cooley      "A  peculiar  excellence  of 
the  common  law  system  of  trial  consists  in  the  fact  that  the 
accused  is  never  compelled  to  give  evidence  against  himself." 

So  also  of  the  protection  against  double  jeopardy,  Blackstone 
says      it  is  a  "ttniversal  maxim  of  the  common  law  of  England 
that  no  man  is  to  be  brought  into  jeopardy  of  his  life  more 
than  once  for  the  same  offence, "  and  in  every  case  the  defendant 
might  plead  former  jeopardy  in  bar  of  the  accusation. 
M    Weyrich  v.  People  89  111.  94  (1878) 

(2)  "No  person  shall  be  compelled  in  any  criminal  case  to  give 

evidence  against  hiir.self  or  be  twice  put  in  jeopardy  for 
the  same  offence,"    Constitution  of  Illinois,  Art.  II 
Sec.  10. 

(3)  "constitutional  Limitations."  Cap»  X  442. 

(4)  Chase's  Blackstone  p.  1019. 


The  guarantee  againot  being  compelled  to  give  evidence 
againat  onoaelf  wati  put  into  the  Virginia  Bill  of  Rights  and 
into  all  but  four  of  the  other  constitutions  in  force  prior  to 
1818,   including  the  federal  constitution  .      Put  the  protection 
against  double  jeopardy  was  found  in  only  one  half  of  those 
same  constitutions,  not  having  been  inserted  into  the  prototype 
of  the  early  Bills  of  Bights.    In  the  first  Illinois  constitution 
both  of  the  ^^e  provisions  were  embodiecfi  and  they  have  remained 
in  the  same  ternis  down  to  the  present  consti tution, being  adopted 
H»byy^he  convention  from  the  foriner  constitutions  without  comment. 
Both  guarantees  exi:3ted  on  almost  all  the  other  constitutions 
in  force  in  1870 

The  constitutional  protection  against  self-incrimination 

means  that  neither  a  witness  nor  the  defendant  in  a  criminal 

Case  need  answer  any  question  the  answer  to  which  will  expose 

him  to  any  penalty,  fine,  forfeiture  or  punishment,  or  which 

will  have  a  tendency  to  accuse  him  of  any  crime  or  misdemeanor 

or  to  ez'cpose  him  to  any  penalty  or  forfeiture  or  Y/hich  would 

be  a  link  in  a  chain  of  evidence  to  convict  him  of  a  criminal 
(1) 

offence.        But  this    privilege  is  personal  to  the  witness 

(3) 

and  he  may  waive  it  without  consent  of  the  defendant.  Furthermore, 
this  constitutional  privilege  cannot  be  claimed  if  ty  reason  of 
an  immunity  statute  the  evidence  obtained  under  compulsion  can 


(1)  Lam  son  v.  Boy  den  160  111.  613  (1896) 
(3)    Sajnuel      v.  People  154  111,  379  (1897) 


-44- 

in  no  Way  be  used  as  a  basio  in  aid  of  a  prosecution  which 

(1) 

might  result  in  fine,   imprisonment,  penalty  or  forfeiture. 

The  protection  against  double  jeopardy  means  that  no 

person  shall  twice  be  put  in  peril  of  conviction  for  the  some 

(3) 

act  and  offense,        and  whether  two  indictments  are  for  the 

same  offense  must  be  determined  by  an  inspection  and  comparison 

(3) 

of  the  indictments.      If  the  facts  charged  in  the  second  indictmer||t 

would  have  sustained  conviction  under  the  first  indictment,  the 

plea  of  former  jeopardy  IjS  good,        but  where  the  facts  charged 

in  the  second  indictment  would  not,  if  proveol,  have  warranted 

conviction  under  the  first,  the  plea  of  former  jeopardy  cannot 
(5) 

be  maintained. 

The  verdict  itself  forms  a  bar  to  Gubsequent  prosecution 

(6) 

for  the  same  offense  though  there  is  no  judgment  on  it,  but 

where  judgment  of  conviction  is  arrested  or  reversed  at  the 

instance  of  the  accused  he  will  not  in  legal  contemplate  have 

been  in  jeopar^iy,  but  may  again  be  put  on  trial  for  the  same 
(7) 

offense . 


(1)    People  V.  Butler  St.  Foundry  20,   111.  336  (1903) 

The  immunity  clause  in  the  act  here  in  question  was 

as  follows:-  "PROVIDED  that  no  corporation  etc  shall 

be  subject  to  any  cfiminal  prosecution  by  reason  of  anything 
truthfully  disclosed  by  the  affidavit  required  by  this  act 
or  truthfully  disclosed  in  any  testimony  elicited  in  the 
execution  thereof."  301  111,  p.  343. 

(3)  Fr eel and  v.  People  16  111.  380  (1855) 

(3)  Durham'  v.  People  5  111.  172  (1843 

(4)  Ibid'^^ 

(5)  Gued'el  v.  People  43  111.  336  (1867) 

(6)  Hankins  v.  Peopfe  106  111.  638(1883) 

(7)  Gerhard  v.  People  4  111.  362  (1842) 


-45- 

So  al30  if  the  jury  ia  discharged  in  case  of  di QacreeiT:ent,  the 

(1) 

former  jeopardy  will  not  be  available  as  a  plea  to  a  nev;  trial* 

When  the  sane  act  constitmtes  several  offenses,   trial  and 

punishment  for  one  will  be  no  bar  to  a  prosecution  for  the 

(3) 

Others  growing  out  of  the  same  transaction.      So  for  instance 

where  one  single  act  violates  a  local  ordinance,  a  state  law 

and  a  law  of  the  United  States  there  are  three  distinct  offenses 

which  are  punishable  as  such.     Similarly  in  case  of  an  act 

which  is  both  a  contempt  of  court  and  an  indict ablejcrime,  the 

indictment  and  the  proceeding  for  contempt  are  entirely  distinct 

(3) 

and  neither  will  be  a  bar  to  the  other-. 


(4) 

Section  11 . 

Of  the  three  provisions  in  the  next  section,  the  first 
one,  requiring  that  all  penalties  shall  be  proportioned  to  the 
nature  of  the  offence,  can  be  found  in  England  as  early  as  Magna 
Charta,  where  it  is  declared  that  "a  freeman  shall  not  be  a^nerced 
for  a  small  offence,  but  according  to  the  degree  of  the  fault 

(5) 

and  for  a  great  crime  in  proportion  to  the  heinousness  of  it". 
The  spirit  of  this  prohibition  was  expressed  in  the  early  America! 
constitutions  either  b/-   a  provision  like  that  in  the  English  Bill 


(1)  Dryer  v.  People  188  111.  4C  (1900) 

(2)  Trausch  v.  Cook  Co.  147  111.  534  (1893) 

(3)  Reattie  v.  People  33  111.  APP •  651  (1889) 

(4)  "All  penalties  shall  be  proportioned  to  the  nature 
of  the  offense,  and  no  conviction  shall  work  corruption 
of  blood  or  forfeiture  of  estate;  nor  shall  any  person 

be  transported  out  of  the  state  for  any  offense  committed 
within  the  same."  Constitution  of  Illinois,   1870. Art. II  Seqll 

(5)  Magna  Charta,  Cap.  30  Stubbs  "Select  Oharter  s"p  .399 . 


-46- 

of  Rights  against  oxce33iv'i  fines  and  cruel  and  unusual  punish- 
U) 

ment,      found  in  th©  Virginia  Rill  of  Rights  and  in  the  federal 

constitution,  or  by  a  requirement  that  all  penalties  shall 

be  proportioned  to  the  nature  of  the  offence,  as  in  the  Illinois 

constitution  of  1818.     In  one  or  the  other  of  theae  two  forms 

this  eatly  provision  of  Magna  Chart  a  existed  in  over  half 

the  constitutions  in  force  in  1818  and  Articled  of  the  Northwest 

Ordinance  had  provided  that  "all  fines  shall  be  moderate  and  no 

cruel  or  unusual  punishments  shall  be  inflicted." 

The  second  provision,  to  the  effect  that  no  conviction 

shoul!  work  corruption  of  blood,  or  forfeiture  of  estate,  is 

directed  against  the  common  law  rule  that  descent  could  not  be 

traced  through  a  person  convicted  of  treason  or  felony,  and 

that  his  real  and  personal  property  were,   therefore,  forfeited, 

the  former  to  the  lord  of  the  fee,   the  latter  to  the  king. 

These  incidents  of  treason  and  felony  prevailed  from  the  earliest 

time,   and  had  their  source  in  the  feudal  theory  that  property, 

especially  realty  was  held  of  a    superior  lord  Upon  the 

condition  of  discharging  duties  attaching  to  it,   and  was  for- 

(3) 

feited  by  breach  of  these  conditions. 

This  prohibition  was  not  found  in  the  earliest  Bill  of 
Rights  nor  in  the  fedal  constitution  and  when  the  first  Illinois 
constitution  was  framed,  only  three  other  constitutions  contained 
the  prohibition  exactly,  though  four  others  contained  it  in 


(l)    This  prohibition  had  already  been  anticipated  in  the 
Massachusetts  Body  of  Liberties,   clauses  43,  45  and 
46  Stimson  "Federal  and  State  Coiiatitions,  "  p.  33. 

(3)     Stephen  "History  of  the  Criminsftl  Law  of  England. V.l  p. 487, 


-47- 

modified  form. 

The  last  provio-^on  in  thia  section  forbidding  deportation 

for  crime  committed  wi'-hin  the  state  wao  necejaitated  by  the 

English  statutes  just  prior  to  the  American  Revolution,  making 

deportation  a  substantive  punishment.    The  punishment  was 

unknown  at  common  law,  and  in  1679  the  Habeas  Corpus  Act  had 

forbidden  the  deportation  of  English  subjects  as  prisoner 3  out 

(1) 

of  the  kingdom.      It  was  introduced  as  a  condition  of  patdon 

(3) 

in  Case  of  crimes  excluded  from  clergy      and  by  reason  of 

statutes  passed  in  eighteenth  century,  had  become  part  cf  the 

law  of  the  colonies  upon  their  separation  from  England.  This 

provision  was,  however,  very  rcire  in  the  early  constitutions 

and  in  1818  only  three  of  the  eighteen  then  existing  state 

(3) 

constitutions  contained  such  a  prohibition. 

All  three  of  the  above  provisions  were  adopted  in  the 
constitution  of  ].348,   though  the  committee  on  the  Bill  of  Rights 
omitted  all  mention  of  the  first  two  in  its  report.  In  the 
constitution  of  1870  these  same  stipulations  were  retained 
without  change,  though  it  was  sug.^^ested  among  other  changes 
to  add  that  the  death  penalty  should  never  be  inflicted. 

The  question  whether  the  imposition  in  a  particular  instance 
of  a  punishment,  though  authorized  by  the  legislature,  violates 
the  requirement  that  penalties  shall  be  proportioned  to  the 

(1)     Stubbs  "Select  Charters,"  p.  53. 
(3)     Stephen,   supra  pp .  480,  487. 

(3)  Mississippi,  1817,  Ohio,  1803jVermont  1793. 

(4)  Debates    of  the  Convention  of  1869  p.  1573. 


-4S- 

nature  of  the  offence,  is  of  course,  left  to  the  diacretion 

of  the  court.    But  it  13  a  diocretion  to  be  judicially  exercised 

and  there  may  be  caaeo  in  which  a  puAlshment,  thou£;h  within  the 

limits  fixed  by  a  statute,  is  so  clearly  excessive  a3  to  be  i:. 

(1) 

violation  of  this  constitutional  requirement. 

But  whether  the  penalty  imposed  ty   statute  on  a  crime  is 

excessive  per  se,   is  a  matter  primarily  for  legislative  discretion. 

When  the  legislature  has  authorized  a  designated  punishment  for 

a  specified  crime,  the  court  will  not  hold  it  invalid,  unless  it 

is  a  cruel  or  degrading  punishment  not  known  to  the  common  law 

or  a  degrading  punishment  which  had  become  obsolete  in  the 

state  prior  to  the  adoption  of  its  constitution  or  is  so  wholly 

di sproportioned  to  the  offence  as  to  shock  the  moral  sense  of 
(3) 

the  community. 

An  act  imposing  tbejf orf ei ture  of  all  franchises  of  a 

corporation  as  a  penalty  for  any  violation  of  the  prohibition 

of  the  act  on  discriminating  freight  rates  was  held  to  contravene 

(3) 

this  provision  of  the  constitution.      But  providing  an  increased 

penalty  for  a  second  offence  is  not  imposing  a  disproportionate 

(4) 

penalty,  for  repetition  of  the  offence  aggravates  the  guilt. 

(1)  Cooley  "Constitutional  Limitations."    p.  471. 

(3)  People  V.  Illinois  State  Reformatory  148  111.  413  (1SS4) 

(3)  C  &  A.  H.  R.  Co.  V.  People  57  111.  11.  (1873) 

(4)  Kelly  v.  People  115  111.  583.  (1886) 


Section  12« 


Imprisonment  for  debt  waa  one  of  the  great  defects  of  the 
common  la'v  from  the  earliest  time 3  until  well  into  the  nineteenth 
century  in  England,   an:!  existed  in  most  of  the  American  colonies 
for  many  years,  thour/n  somewhat  mitigated  by  insolvent  laws.  But 
the  absurdity  and  injiustics  of  imprisoning  honest  debtors  was 
pretty  generally  teal i zed  by  1776,  when  the  first  American 
constitutions  'vere  being  framed,  and  seven  of  the  state  constitu- 
tions in  force  when  Illinoig  became  a  state  embodied  a  prohibition 

against  imprisonment  for  debt,  in  the  absence  of  fraud,  as  one 

(3) 

of  the  guarantees  of  individual  liberty.        The  constitution 
of  1848  and  the  proposed  constitution  of  1862  retained  this 
provision  from  the  earliest  constitution,  and  no  change  was 
made  in  the  section  when  adopted  into  the  present  Illinois 
constitution, 

This  constitutional  guarantee  is  confined  to  actions  upon 
contract*^*  express^mpli  ed,  and  does  not  apply  to  liabilities 
for  totts      nor  to  fines  or  penalties  arising  from  a  violation 


(1)  "No  person  shall  be  imprisoned  for  debt  unless  upon 
refusal  to  deliver  up  his  estate  for  the  benefit 

of  his  creditors  in  such  manner  as  shall  be 
prescribed  by  law  or  in  cases  where  there  is  strong 
presumption  of  fraud."  Constitution  of  Illinoi s, 1870, 
Art.  II,   Sec.  13. 

(2)  This  principle  had  already  been  embodied  in  the 
Massachusetts  Body  of  Liberties,  1641,   in  the 
provision  that  no  man  should  be  imprisoned  for 
debt  if  the  law  could  find  competent  means  of 
satisfaction  otherwise  from  his  estate.  Stimson 
"Federal  and  State  Constitutions,"  p.  33. 


(3)     Rich  V.  f eople  66  111.  513  (1873) 


-6  0- 

(1) 

of  the  penal  laws  of  the  State,        and  a  court  ca.  not  conirnit 

for  contempt  in  not  obeying  a  decree  to  pay  money  unlesj  the 

(2) 

refusal  is  wilful  and  not  cauaed  by  financial  liability. 

(3) 

Section  13. 


The  right  of  eminent  domain,  that  is  the  power  of  the  state 

to  appropriate  to  its  own  use  or  to  that        its  agents  private 

property  of  its  citizens  needed  for  public  purposes,  is 

inherent  in  sovereignty  and  is  as  old  as  government  itself.  In 

early  times,  moreover,  the  duty  of  the  state  to  cor.pensate  the 

individual  for  property  so  taken,  waa  not  recognized,  and  even 

in  England  private  property  was  frequently  taken  for  the  use 

(4) 

of  the  crown  without  compensation.        But  Blackstone  in  discusang^ 

the  limitations  on  the  absolute  right  of  private  property 

declares  that  the  legislature  alone  can  act  in  the  exercise 

of  the  power  of  eminent  domain  and  that  only  by  giving  the 

individual,   so  deprived,   a  full  indemnification  and  equivalent 

(5) 

for  the  injury  thereby  sustained.  Eminent  domain  differs 

from  taxation,  in  that  i  n  the  former  case  the  citizen  is  compelled 
to  surrender  to  the  public  something  beyond  his  due  proportion 
for  the  public  benefit.     It  is  a  primary  requisite,  therefore. 


(1)  Kennedy  v.  People  123  111.  649  (1887) 

(2)  Blake      v.  People    80  111.     11  (o875) 

(3)  "Private  property  shall  not  be  taken  or  damaged  for  public 
use  without  just  compensation.  Such  compensation,  when  not 
made  by  the  State  shall  be  ascertained  by  a  jury,  as  shall 
be  prescribed  by  law.  The  fee  of  land  taken  for  railroad 
tracks,  without  consent  of  the  owners  thereof  shall  remain 
in  such  owners  subject  to  the  use  for  which  it  is  taken." 
Constitution  of  Illinois,  1870  Art.  IT  Section  13. 

(4)  White  "Constitution  of  Pennsylvania"  Cap .XXVI . 

(5)  Chase's  Blackstone  p.  79, 


V 

{ 
I 


-51- 

in  the  appropriation  of  lands  for  public  purposes  that  comp en- 
CD 

fiation  shall  be  made  therefor. 

A3  thio  pov;er  of  eminent  domain  does  not  depend  upon 
constitutions  but  exi'jts  independently  of  them,  inherent  in 
sovereignty,  no  affirmative  declaration  of  the  power  was 
requisite  in  the  framing  of  our  Merican  constitutions.  But 
to  guard  against  abuse  of  the  power  by  the  sovereign  through 
its  agents,   it  was  felt  necessary  to  embody  some  limitations 
thereof  in  the  fundamental  law  of  the  state.  The  Virginia  Rill 
of  Rights  did  not  contain  such  a  provision  nor  did  any  of  the 
other  constitutions  of  that  year  which  v/erejmodel ed  after  it. 
But  the  Ilortwest  Ordinance  had  provided  for  compensation, 
and  when  Illinois  in  1B18    first  framed  a  constitution,  one 
half  of  the  state  constitutions  then  in  force  contained  some 
limitation  of  the  power  of  emjinent  domain. 

In  the  first  Illinois    constitution  it  was  provided  that 
no  man's  property  should  be  taken  or  applied  to  public  use, 
without  the  consent  of  his  representatives  in  the  general 
assem^bly,  nor  7;ithout  just  compensation  being  made  to  him,  which 
atill  showed  the  distrust  of  executive  usurpation  of  pov/er  so 
strongly  experienced  by  the  An-erican  colonists  in  1776.  In 
the  first  draft  of  the  Illinois  constitution  submitted  to  the 
convention  it  was  provided  that  com.pensation  should  be  previously 
made,  which  condition  had  not  formerly  been  considered  essential 
to  the  Validity  of  the  exercise  of  the  power,   at  least  by  the 


(1)     Chase's  Blackstone  p.  79. 


-52- 

(1) 

State  itaclf.         But  this  augr^eation  vian  not  at  that  time 
adopted. 

Nd    change  Wa3  made  in  the  provi:^icn  regarding  eminent 
domain  in  the  constitution  of  1848,  but  important  changes  were 
made  in  the  present  cons^ti tut i on  in  1870.     In  the  firyt  place, 
while  it  had  been  the  univeroal  rule  that  the  compensation 
awarded  ?7ao  to  be  measured  by  the  value  of  the  property  taken 
and  the  direct  injury  to  the  ov/ner  from  the  loss,   ao  that  any 
proper  exercise  of  the  powers  of  government  which  did  not 
directly  encroach  upon  the  property  of  an  individual  or 
disturb  hirr.  in  hia  possession  or  enjoyment  would  not  entitle 
him  to  compensation,  it  was  now  provided, for  the  first  time  in 
any  state  in  the  Union,   that  private  property  should  not  be 
taken  or  darnaF,ed    for  public  use  without  just  compensation. 

This  important  innovation  was  not  adopted  without  consider- 
able discussion  and  some  opposition  in  the  convention  of  1869, 
mainly  on  the  ground  that  by  departing  from  the  settled  rules 
relating  to  eminent  domain  there  was  no  certainty  as  to  where 
the  courts  might  stop  in  the  application  of  thin  new  provioicn, 
resulting  perhaps  in  making  it  impossible  to  carry  ouf  certain 
important  public  inproverient s  because  of  the  extent  of  dam^ages 
to  be  paid  to  private  owners.      Rut  this  eminently  just  and 
reasonable  provision  was  retained  and  has  been  copied  in  a 

(2) 

number  of  the  state  constitutions  adopted  since  that  time. 

Another  important  change  introduced  in  the  consti tutiorlof 


(1)  Cooley  "Constitutional  Lim.i  tations .  "  p.  813. 

(2)  Ibid  p.  810. 


-53- 

IS'^O  with  respect  to  the  right  of  eminent  doniair.,  wan  the 

provision  as  to  the  manner  of  ascertainins  the  conpenaation  due. 

Under  the  former  constitutiono  it  was  left  T/ith  the  le^i .slature 

to  fix  the  manner  of  determining  such  compensation*  What  the 

tribunal  shall  be  which  is  to  asse33  the  compensation,  m.uct 

be  determined  either  by  the  constitution  or  by  the  statute  which 

provides  for  the  appropriation,  for  the  exercise  of  the  right 

of  eminent  dom.ain  is  not  one  where,   as  a  matter  of  right,  the 

(1) 

party  is  entif  ed  to  trial  by  jury. 

But  the  proceeding  being  judicial  in  character,  the 
party  in  interest  is  entitled  to  h?^ve  an  impartial  tribunal  and 
the  usual  rights  and  privileges  which  attend  judicial  investi- 
gations, and  the  Convention  of  1863  felt  that  jury  trial  was 
the  best  manner  of  securing  such  im.partial  investigation,  in 

cases  where  the  richt  was  not  being  exercised  by  the  State 
(3) 

itself.          It  Was  first  proposed  to  provide  for  an  alternative 
body  of  three  commissioners,   appointed  by   a  court  of  record,  to 
ascertain  the  compensation^which  was  the  miethod  of  assessing 
such  compensation  under  the  existing  statutes.    But  this 
provision  was  struck  out  of  the  committee  report  by  the  conventic||ri, 
m.any  members  of  which  were  in  favor  of  prescribing  even  more 
omi-yiontly  the  process  to  be  followed  in  assessing  compensation 
hy  a  jury.     It  was  again  variously  suggested  to  require  compen- 
sation to  be  first  made,  and  several  resolutions  were  introduced 


(1)  Cooley  "Constitutional  Limitations."  p.  817. 

(2)  This  provision  was  taken  from  the  Constitution  of  Hew 
York  1846,  and  was  found  elsewhere  only  in  the  consti tution£ 
of  Iowa  1857,  Ij^ichi^.^^n  1850,  and  Oj^io^  1851 . 


-54- 

with  a  view  to  prohibiting:  the  deduction  of  benefits  from  the 

compenaation  to  be  awarded.  This  latter  proposition  aroused 

much  discussion,  being  re[^arded  b  y  sor.e  as  essential  to  a 

just  exercise  of  the  power  of  eminent  domain,  and  by  others 

as  itself  most  unjust  and  fc^^t         unreasonai^i e .  The  general 

expression  of  sentiment  was,  however,  distinctly  in  favor  of 

such  a  limitation  and  it  was  in  fact  adopted  by  the  convention, 

(1) 

but  upon  re-referment  to  the  committee  was  finally  omitted. 

Various  other  resolutions  and  motions  relative  to  the 

right  of  eminent  domain  were  introduced,  there  being  more 

discussion  of  this  section  of  the  Bill  of  Rights  than  of  any 

other,  due  principally  to  what  were  considered  the  abuses  of 

this  right  by  the  public  ser^/ice  corporations,  especially  the 

railroads  which  had  of  late  been  making  such  large  use  of 

the  po7/er.    But  the  convention  as  a  whole  realised  the  wisdom 

of  leaving  the  natter  of  detailed  regulation  of  the  power  to 

the  legislature,  and  rejected  the  more  radical  suggestions, 

one  of  which  went  30  far  as  to  provide  that  no  man  should  be 

(2) 

deprived  of  his  property  in  any  case  against  his  consent. 

The  provision  that  the  f'^e  of  land  taken  for  railroad 
tjfe.ck3  without  the  consent  of  the  owners  thereof  should  remain 
in  such  owners,   subject  tojthe  use  for  which  it  is  taken  was 


(1)  Debates  of  the  Convention  of  1889  pp.1575  f i  . 
(3)     Debates  of  the  Convention  of  1869  p.  429 


-55- 

al  30  uiiiqus  in  the  conotitution  of  Illinois.    Its  purpose  v/aa 
to  prevent  private  property  from  being  taken  and  retained  by- 
railroad  corporations  and  turned  to  other  U3e3  v;hen  no  longer 
needed  for  the  purpose  for  vYhich  it  vvaa  taken* 

It  appears,   therefore,   from  the  debates  of  the  convention 
that  this  whole  question  of  the  right  of  eminent  domain  and 
its  manner  of  exercise  was  considered  a  question  of  fundamental 
importance  v/hich  had  not  been  sati sf actoriljr  dealt  with  in 
the  past,   and  which  required  further  action,  but  the  diversity 
of  vieivs  as  to  the  changes  to  be  made  resulted  in  a  great  deal 
less  radical  alteration  in  the  v/ording  of  this  important  section, 
than  v7ould  have  suited  many  members  of  the  convention. 

Since  the  right  of  eminent  domain  exists  in  every  government 

independently  of  constitutional  grant,  on  the  ground  of  necessity; 

no  legislative  bargain  in  restraint  of  the  complete,  continuous 

and  repeated  ex::5rcise  of  this  right  is  valid  or  v/ithin  the 

protection  of  the  obligation  of  contracts  in  either  the  federal 

(1) 

or  state  constitutions. 

Private  property  in  this  connexion  has  been  defined  as 

that  dominion  or  indefinite  right  of  user  and  disposition  '.vhihh 

one  may  lawfully  exercise  over  particular  things  or  subjects 

(3) 

generally,  to  the  exclusion  of  others.      Every  sgecies  of 
property  which  the  public  needs  may  require  and  which  government 
Cannot  lawfully  appropriate  under  any  other  right  is  subject 
to  be  seized  and  appropriated  under  the  right  of  eminent  domain^ 

(1)  Village  of  Hyde  Park,  v.  Cemetery  Association. 119111 .141 (ISqb 

(2)  I .  G .  ?■ .  R  .  Co  .  V.  Commissioners  of  HiF.hways  161.111.344  (1836) 


in  fact  le^al  and  equitable  righto  of  every  description,  excejt 

money  or  those  ri^chto  in  ac*:ion  -.vhich  can  only  be  available 

(1) 

7/hen  rriade  to  jjroduce  r.oney. 

Under  the  present  constitution  not  only  the  taking  of 
private  property  but  ^  the  dariaging  qs  v/ell  mu3t  be  compen- 
sated for.     Prior  to  the  constitution  of  1870,   recovery  could 
be  had  only  for  direct  physical  in;iury  to  property    as  by 
by  overflowing  it,  depositing  materials  upon  it  etc.,   and  so 
interference  viith  the  ingress  to  or  egress  from  property  v;a3 
not  required  to  be  compensated  for.     But  under  the  neN  provision 
inlthis     state  compensation  is  to  be  alloived  in  all  cases,  v/here 

but  for  some  legislative  enactment,   an  action  r/ould  lie  at 

(2) 

common  law,   for  tort  to  property. 

The  question  of  :vhat  constitutes  a  public  use,  has  frequent 

arisen  in  the  courts,  but  no  definite  rule  can  be  laid  dov/n.  The 

necessity  or  expediency  of  putting  private  prpperty  to  a  certain 

use^  is  a  question  wholly  for  the  legislature,  though  the 

question  ^;7hether  such  use  is  public  or  private,  will  be  reviewed 
(3) 

by  the  courts.      The  ordinary  functions  of  government  are,  of 

coursegj  clearly  public  uses  but  even  private  undertakings  may 

embody  a  public  use,   as  in  the  case  of  so-called  public  service 

(4) 

or  puolic  utility  corporations. 

(1)  Cooley  "Constitutional  Limitations."  pp.756ff. 

(2)  Rigney  v.  Chic:i^;o  .  102  111.64.(1382) 

(3)  Dunliam  v.  Village  of  Hyde  Park.  75  111.  371  (1874) 

(4)  Chi  car.o  R.I,  and  ^ac  .  R .  n .     v.  Joliet  79  111.  35  (1875) 


-57- 

The  construction  of  drains,  ditches  and  leveeo  by  land- 
owners for  agricultural,   sanitary,  or  nining  purposea  across 

th6  landG  of  others,   especially  authorized  by  constitutional 
(1) 

provision,       is  also  subject  to  the  conditions  irnposed  on 

the  exercise  of  the  right  of  eminent  domain.     Sev;era£e  and 

other  ^Yorks  necessary  for  the  abatem.ent  of  public  nuisances 

(2) 

come  '//ithin  the  meaning  of  a  public  use      whether  constructed 

by  public  authorities  or  byprivate  companies. 

"Just  compensation"  means  compensation  to  such  amount  as 

is  under  all  the  circumstances  a  fair  and  full  equivalent 

(3) 

for  the  thing  taken      or  a  reimbursement  for  real,  as 

(4) 

distinguished  from  merely  speculative  damages. 

The  requirement  of  a  jury  in  this  section  embraces  all 

i/jthe  provisions  of  section  5  and  permits,   therefore,   a  jury  of 

(5) 

six  to  be  authorized  in  trials  before  justices  of  the  peace. 

HSo  also  the  jury  must  be  one  in  the  selection  of  which  the 

(4) 

party  in  interest  has  had  an  opportunity  to  participate. 

In  general,   since  the  right  of  eminent  doamin,  necessary 
and  undisputed  thought  it  be,   is,  nevertheless,  a  compulsion 
on  the  individual  to  sell  his  property,  nolens  volens.  it  miust 


(1)  Constitution  of  Illinois,  1870,  Art.  IV. Sec. 31. 

(2)  Jacksonville  v.  Lambert  63  111.  519  (1872) 

(3)  Phillips  V.  Tov7n  of  Scales  .?lound  195  111.  353  (1902) 

(4)  R . R . Co .  V.  City  of  Pontiac.   169  111.  155  (1897) 


-58 


not  be  abused,   and  in  its  exercise  the  limitations  prescribed 

by  the  constitution  should  be  strictly  observed,   and  the 

statutes  passed  in  pursuance  thereof  should  be  strictly  cornpli 
(1) 

'.vi  th  . 

(2) 

Section  14. 

Ex  post  facto  la'-'/s,   that  is,  retroactive  criminal  la'-^s 

(3) 

were  considered  at  aommon  lav;  al  30  as  cruel  and  unjust.  The 
principle  that  all  la'^s  should  be  made  to  commence  in  future 
Was  a  fundamental  principle  of  sound  legisla':ion  in  England 
and  has  been  a  basic  doctrine  of  our  American  conoti tutional 
law  from  the  very  first.     Retroactive  laws,   whether  ex  post 
facto  laws  or  laws  impairing  the  obligation  of  contracts, 
that  is,  whether  criminal  or  civil,  were  ever  contrary  to  the 
spirit  of  our  insti tut  ions, under  which  life,   liberty  and 
property  are  most  jealously  safeguarded-    The  Virginia  Bill  of 
Rights,   it  is  true,  did  not  embody  a  prohibition  on  such  laws, 
but  the  Northwest  ordinance  had  forbidden  laws  violating 
contract  rights  and  the  great  majority  of  states  had  by  1818 
adopted  such  provisions  in  their  constitutions,   besides  the 
provisions  on  this  point  in  the  United  States  constitution. 


(1)  Ayer  v.  City  of  Chicago.  149  111.  S62  (1894) 

(2)  "ITo  ex  post  facto  law,  or  law  impairing  the  obligation  of 
contracts,  or  making  any  irrevocable  grant  of  special 
privileges  or  immunities  shall  be  passed . "Consti tution 

of  IlMnois,   1870,   Art.  II.  Section  14. 

(3)  Chase's  Blackstone,  p.  10. 


-59- 


The  federal  conoti tution,   it  nuat  be  remembered,    .ct  only 
forbids  6oncre33  to  pa33  _ex  pojt  facto  lav/a,   but  expreo.ily 
forbida  the  states  al  30  to  pass  either  ex  pc  3t  facto  la"'V3  or 
laws  impairing  the  obligation  of  contracts.  The  insertion  of 
these  provisions,  and  the  same    was  also  true  of  the  state 
guarantees  of  due  process  after  the  adoption  of  amendrr.ent 
fourteen  of  the  federal  constitution  into  the  first  constitution 
of  Illinois  could,   therefore,  be  of  effect  only  in  broadening 
the  protection  which  the  interpretation  of  the  federal  provision 
b'  the  United  States  courts  might  supply.    That  is,   any  state 
act  vYhich  federal  courts  would  consider  contrary  to  either 
of  these  prohibitions  as  contained  in  the  federal  constitutions 

would  be  wholly  bad,  whether  or  not  the  state  courts  ir.ight 
consider  it  as  not  violating  the  identical  provision  in  the 
state  constitution.      On  the  other  hand,  ho?;evsr,   a  state  act 
sustained  by  the  federal  courts  as  not  contrary  to  these 
prohibitions  in  the  federal  constitution  might  still  be 
invalidated  by  the  state  courts  as  violating  their  interpretatior 
of  the  same  words  in  the  state  constitution. 

Both  of  these  guarantees  wer'=^,  however,   continued  in  the 
later  constitution  of  Illinois,   and  adopted  in  the  constitution 
ofl870  practically  without  discussion,  being  found  at  that 
time  also  in  about  two  thirds  of  the  other  state  constitutions. 

The  prohibition  on  making  any  irrevocable  grant  of  special 
privileges  or  immunities,  was  new  in  the  present  constitution 
of  Illinois,  but  very  little  discussion  of  this  provision  took 
place  on  the  floor  of  the  convention,  notwithstanding  that  it 


-60- 

(1) 

could  bo  found  in  only  tr;o  other  constitutions  of  that  time. 
The  indi 3criminat9  grantinc  of  valuable  franchiaea^  in  corporate 
chartera  made  it  neceasar-;,  under  the  ruling  in  the  Dartmouth 
College  ca3e  that  such  charters  are  contracts,   to  protect 
the  public  against  corrupt  or  indifferent  legislative  bodies, 
by  providing  in  the  fundamental  lav/  of  the  state  that  such 
grants  could  not  be  irrevocably  made. 

In  the  convention  of  1869  it  was  moved,   .Tith  a  viev7  to 
remedying  the  mistakes  of  the  paot,  as  well  as  to  providing 
protection  in  the  future,   that  any  amendment  made  to  existing 
charters  of  corporations  should  subject  them  to  future  legis- 
lation,  that  is,  withdrav/  them  from  the  protection  of  this 
provision,  but  this  motion  was  not  reported  out  by  the  committee 
to  which  it  ■.•/:',s  referred. 

Ex  post  facto  laws  are  defined  in  this  state  to  be  those 

by  which,   after  an  act  indiff -rent  in  itself  has  been  coru-itted, 

the  legislature  declares  it  to  have  been  a  crime  and  makes  it 
(2) 

punishable,        or  those  v;hich  change  punishments  to  the 

■^ke.  (3) 
prejudice  of y^def endant  after  the  commission  bf  the  crime. 

The  entire  deprivation  of  a  remedy  on  a  contract,  is  a 

violation  of  the  protection  hereby  guaranteed,  but  tiie  modifioati 

(1)  Kansaa  1857,  Ohio,  1851. 

(2)  Coler  v.  Madison  Go.  I  111.  154  (1826) 

(3)  Johnson  v.  People  173  111.  131.   (18  98) 

The  meaning  and  scope  cf  the  federal  prohibition  on 
the  passage  of  ex  post  facto  laws  which  is  directed  to 
the  state  legi slatur e^ as  well  as  to  the  National  Congress 
was  considered  at  length  in  the  case  of  Calder  v.  Bull, 
3  Dall.  386.     


i 


-61- 

(1) 

or  substitution  of  a  remedy  ia  not,       nor  ia  the  changinc  of 

(2) 

the  rules  of  evidence  an  impairment  of  a  veated  right. 

Lin-.itation  la'vo  are  not  bad  even  if  affecting  existing  rights, 

if  a  reasonable    time  is  given  for  the  assertion  of  the  right 

(3) 

before  the  bar  takes  effect.  The  legislature  may  enact 

retrospective  statutes  to  validate  invalid  contract.-j,   or  ratify 

acts  which  it  might  have  authorized  in  the  first  place,  if 

(4) 

no  vested  rights  "/ill  be  infringed. 

Charters  of  private  corporations  are  contracts  under  the 

(5) 

Illinois  constitution      as  '.veil  as  the  under  federal  constitution, 

and  are  subject  only  to  a  reasonable  exercise  of  the  police 

pov/er  of  the  state,       that  is,   to  the  inherent  ina].i enable  right 

to  make  all  reasonable  regulations  in  the  interedtB  of  public 

safety,  welfare,  health  and  comfort.     So  even  exemption  from 

(7) 

taxation  by  charter  is  a  contract  binding  on  the  state, 

although  the  taxing  gower  is  a  fundamental  attribute  of  governmen ; . 

(1)  Hewkirk  v.  Ch apron,  17  111  344.  (1856) 

(2)  Roby  V.  Chicago.   64  111.  447.  (1873) 

(3)  Bradley  v.  TightcaP.   201  111.511  (1903) 

(4)  Scamir-on  v.  Commercial  Co.  6  111.  App .  551.  (1880) 

(5)  Bruffet  v.  Great  Western  R.n. Co.  25  111.  249  (1861) 

(6)  Ruggles  V.  People.   91  111.  856  (1878) 

(7)  111.  C.R.R.  V.  Gccdwin.  94  111.  263.  (1880) 


if 


..I 


I. 


Sections  15  and  16  . 

The  necessity  of  having  the  military  in  subordination  to 

the  civil  power,   and  the  evila  of  any  other  relation  between 

the  twoarms  of  government,  had  been  early  felt  in  Kngland, 

and  a  formal  request  for  remedying  the  abuses  of  the  military 

power  was  embodied  in  the  Petition  of  Right  of  1628  to  Charles 

I,  in  v/hich  it  was  demanded  that  the  soldiers  and  sailors 

quartered  on  the  inhabitants  in  times  of  peace  be  removed,  an.i 

that  the  proceedings  by  martial  law  instead  of  'oy  civil  lav/ 
(3) 

be  suppressed.        Again  in  the  Bill  of  Rights  of  1689  Parliament 

expressly  forbade  the  raising  or  keeping  6f  a  standing  army 

(3) 

within  the  kingdom  in  time  of  peace  without  its  consent. 

In  the  period  prior  to  the  Ajuerican  Revolution,  moreover, 
the  colonists  had  suffered  their  ov;n  experience  of  the  evils  of 
having  standing  armies  quartered  upon  them,   and  interfering  7/ith 
the  regular  course  of  justice,  and  in  the  Declaration  of 
Independence  air,ong  the  oppressions  there  described,  were  the 
keeping  of  standing  armies  in  tinies  of  peace  among  the  coloni  its 
without  the  consent  of  their  legislatures,   the  quartering  of 
large  bodies  of  armed  troops  among  them,   and  generally  the 

(1)  "The  military  shall  be  in  strict  subordination  to  the  civil 
power.  No  soldier  shall  in  tim.e  of  peace  be  quartered  in 
any  house  without  the  consent  of  the  owner;  not  in  time  of 
War,   except  in  the  manner  prescribed  by  law . "Consti tution 
of  Illinois,  1870,   Art.  II,   Sections  15  and  16. 

(2)  Stubbs  "Select  Charters"  p.  518  Petition  of  Right,   cap.  X. 

(3)  Ibid,  p.  524.  Bill  of  Rights,   clause  6. 


I 


I 


-63- 

rendering  of  the  military  independent  of  and  ouperior  to  the 
civil  power. 

The  Virginia  Bill  of  Righta,  therefore,  embodied  a 
provision  forbidding  standing  9*433^  in  time  of  peace,  and 
subordinating  the  military  pcver  to  the  civil  pov/er,   in  all 
caseo,  as  did  also  most  of  the  other  revolutionary  constitutions. 
Notwithstanding  the  fact  that  these  provisions  '.vere  very  common 
at  the  time  \7hen  the  first  Illinoini  constitution  '."/as  frarr.ed, 
no  mention  of  them  is  contained  in  that  document.  But  in  the 
constitution  of  1348,   follov/ing  t:  a  precedent  of  all  but 
three  of  the  t\7enty-eight  constitutions  then  in  force,  the 
section  subordinating  the  military  to  the  civil  por/er  7;a3 
inserted,   and  the  present  prohibition  against  quartering 
soldiers,   found  also  in  almost  as  m.any  of  the  other  constitutions 
of  the  time,  wao  added. 

(1) 

Section  17. 

Though  the  right  of  the  people  in  a  free  government, 
peaceably  to  assemble  an:l  to  petition  the  government  for 
redress  of  grievances,   is  one  which  results  from  the  very 
nature  and  structure  of  its  institutions,  it  via.3  nevertheless 
subjected  to  repeated  attacks  by  the  crovm  in  England.  The 
right  of  petition,   though  no^.v  regarded  ao  a  sirnple,  primitive 
and  natural  right,  Has  even  as  late  as  the  reign  of  James  II, 

(l)     "The  people  have  the  right  to  assemble  in  a  peacable 

manner  to  consult  for  the  common  good,   to  make  knovj-n their 
opinions  to  their  representatives,   and  to  apply  for 
redress  of  grievances."  Constitution  of  Illinois,  1870, 
Art.  II  Section  17. 


-64- 

sought  to  be  denied  in  the  famous  trial  of  the  oeven  biahoprj, 

for  having  attempted  to  exerci oe  this  ri ght , and ^therein  finally 

(1^ 

vindicated  b  -  their  acquittal.  The  Engliah  Bill  of  Rights 
of  168S,  therefore,  after  reciting  the  illegal  prosecution  of 
these  petitioners  to  the    crown,  declares  that  it'  is  the  right 

of  the  subject  to  petition  the  king,   and  that  all  commitments 

(2) 

and  prosecutions  for  such  petitioning  are  illegal. 

This  right  wa3  generally  expressly  protected  in  the  early 
American  constitutions,   though  Story  regard3  it  as  unnecessary 
to  be  expressl'ir  provided  for,  ^"^^and  the  e;irlier  constitutions 
of  Illinois  guaranteed  it  in  virtual l^r  the  same  terms  as 
are  now  found  in  this  section  of  the  present  Illinois  consti tuti  0(1 

(4) 

Section  18 » 

The  English  Bill  of  Rights  had  declared  that  the  election 

(5) 

of  members  of  Parliament  ought  to  be  free,        and  this  principle 
of  free  and  equal  elections  was  again  expressly  declared  in 
the  first  American  Bill  of  Rights  about  a  century  later.  The 
early  constitutions  in  this  country,  pretty  generally  followed 
the  example  of  Virginia  in  this  regard,   and  when  in  1818  Illinois 


(1)  Cooley  "Constitutional  Limitations."  p.  497. 

(2)  Stubbs,    "Select  Charters,"  p.  523. 

(3)  Story  on  the  Constitution,   Section  1894, 

(4)  "All  elections  shall  be  free  and  equal." 

Constitution  of  Illinois,  1870,  Art.  II,   Section  18. 

(5)  Stubbs  "Select  Charters."  p.  535. 


-65- 

expreaaly  c^aranteed  the  freedom  and  equality  of  electiona, 

□he  adopted  the  practice  prevailing  in  more  than  half  of  the 

existing  atate  constitutions. 

The  provision  as  found  in  the  early  Illinois  constitution 

Was  retained  verbatim,   both  in  the  constitution  of  13^8  and 

in  the  present  constitution  of  1870.     Just  v/hat  practical 

effect  '.70uld  be  given  to  this  section  by  the  Illinois  courts 

does  not  appear,  but  its  general  purpose,  undoubtedly,  is  to 

keep  every  election  free  of  all  influences  and  surroundings 

which  minht  bear  iinproperly  upon  it,  or  might  impel  the  electors 

to  cast  their  votes  otherwise  than  as  their  judgments  '.Yould 
(1) 

/fidictate . 

(3) 

Section  19. 


This  general  declaration  of  the  protection  which  should 

be  found  in  the  law  is  practically  an  ejoitome  of  the  theory 

of  the  common  law,   and  \i3.'i  formulated  in  substance  as  early  as 

(3) 

the  thirteenth  century,   in  the  Great  Charter  of  English  Libertie 
Chapter  40  of  Magna  Charta  of  King  John  decl ar es,  "v/e  will  sell 
to  no  man,  "/e  v/ill  deny  no  man,  or  defer  right  or  justice," 
asserting  a  principle  r/hich  has  remained  fundamental  in  the 


(1)  Cooley  "Constitutional  Limitations."  p  932. 

(2)  "Every  person  ought  to  find  a  certain  remedy  in  the  lav/s 
for  all  injuries  and  v/rongs  '.'/hich  he  may  receive  in  his 
person,  property  or  reputation;  he  ought  to  obtain  by  la'^, 
right  and  justice  freely  and  '^-zithout  being  obliged  to 
purchase  it,  completely  and  without  denial,  promptly  and 
without  delay."  Constitution  of  Illinois,  1870,  Art.  II, 
Section  19. 


(3)     Stubbs  "Select  Charters."    p.  301. 


-66- 

Englioh  law  from  that  tine  to  the  preaent,  and  v;hich  had  been 
guaranteed  in  over  half  the  state  constitution:]  in  force  r/hen 
Illinoio  v.'a3  admitted  to  the  Union. 

The  statement  of  this  principle  in  the  first  Illinois 
constitution  -.vas  adopted  without  substantial  change  in  both 
of  the  later  constitutions  of  Illinois  and  stands  in  our 
present  constitution  little  different  from  its  first  annunciation 
seven  centuries  ago. 

Under  this  provision  of  the  constitution  every  man  has 
the  right  to  cal"*-  upon  tb  courts  to  protect  hin  in  his  property,, 
person  and  reputation  and  that  too  v/ithout  reference  to  r:hether 
other  persons  are  also  suffering  from  the  same  cause. 

The  right  of  an  elector  to  have  the  person  who  has  been 

lav/fully  elected  established  in  his  office  is  not  a  right  the 

violation  of  which  is  an  injury  to  his  person,  property  or 

reputation  within  this  provision  of  the  constitution,  and 

Cannot  therefore  be  enforced  throurr,h  the  courts  in  absence  of 

(2) 

a  statute  conferring  such  jurisdiction  on  til  em » 

But  a  statute  requiring  a  plaintiff  to  sho:?  that  he  has 

paid  all  taxes,   due  and  assessed  on  a  lot  before  he  can  question 

the  Validity  of  a  tax  title  is  repugnant  to  this  provision  of 

(3) 

the  constitution,  in  that  it  com.pels  him  to  buy  justice. 

(1)  Wylie  V,  Elwood,  34  111.  App.  244  (1889) 

(2)  nouglas  V.  Hutchinson,  183  111.  337  (1B9S) 

(3)  Reed  v.  Tyler  56  111.  288  (1870) 


-67^ 

(1) 

Section  30 

As  a  fitting  conclusion  to  the  foregoing  enur:,eration  of 
the  fundanental  principles  of  government,  io  added  this 
declaration  of  the  necessity  of  a  frequent  recurrence  to  these 
principles,   for  preserving  the  blessings  of  liberty'',  Sinilar 
declarations  were  found  in  oix  of  the  early  state  constitutions, 
and  in  the  first  constitution  of  Illinois,  from  which  the 
provision  was  continued  without  change  in  the  subsequent 
constitutions  of  the  state. 

Such,  then,   are  the  principles,  in  their  origin, 
development,   and  application  V7hich  nor;  stand  as  part  of  the 
fundamental  la^^/  of  this  cor.monvireal th ;  the  re.mltants  of  a 
large  number  of  factors  of  varying  influence  and  importance. 
The  manifest  qualities  of  the  common  law,  its  no  less  apparent 
defects,  the  doctrines  of  political  theorists,  the  necessities 
of  political  exigencies,   ancient  constitutional  principles 
and  miOdern  political  developm.ent s,   each  played  some  part  in 
formulating  the  body  of  declarations  contained  in  the  present 
Bill  of  Rights;  an  enumeration  of  individual  rights,  on  the 
one  hand  comprehensive  enough  to  provide  an  adequate  guarantee 
of  personal  liberty,  without,  on  the  other  hand  entering  into 
undue  philosophical  speculation  or  unwise  legislative  detail • 

(l)     "A  frequent  recurrence  to  the  fundamiental  principles  of 
civil  government  is  absolutely  necessary  to  preserve  the 
blessings  of  liberty."  Constitution  of  Illinois,  1870, 
Art .  II  Section  20 . 


-68- 

B  I  n  L  I  0  r,  R  A  P  T  '  Y 

(a)  Source  "atori  al . 

Journal  of  the  Illinoio  Conisti tutional  Convention,  1818, 
Springfield.  Illinoia  State  Tliatorical  Library,  Springfield, 
Illinois. 

Journal  of  the  Illinois  Constitutional  Convention,  1847 
Springfield.  University  of  Illinois  Library,  Urbana,  111. 

Journal  of  the  Illinois  Constitutional  Convention, 1862, 
Springfield.  University  of  Illinois  Library,  Urbana,  111. 
Journal>and  Debates  and  Proceedings    of  the  Illinois 
Constitutional  Convention,  1869-18  70,   Springfield.  University  of 
Illinois  Library,  Urbana,  Illinois. 

Stimson,   "Federal  and  State  Constitutions  of  the  United 
States."  1908. 

Thorpe,   "American  Charters  Con;;ti tutions  and  Organic 
Laws."  1909  '^Ifashing- on . 

Stubbs,   "Select  Ch-.rters  Illustrative  of  English  Constitu- 
tional History."  8th,  Ed.  Oxford. 
Illinois  State  Law  Reports. 

Starr  and  Curtiss,   "IlMnois  Annotated  Stattites"  1896  and 
Jones  and  Addington's  Supplerrient s,  1903  and  1905. 

(b)  Secondary  Authorities. 

Blackstone's  Comirientari  es  .  Chase's  Edition. 
Cooley,    "Constitutional  Limitations".  7th  Ed. 
Scherger,   "The  Evolution  of  /Modern  Liberty"  1904, 
Stephen,    "History  of  the  Criminal  La"/  of  England"1883 . 
Green's  History  of  England. 


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